Mr. Randi Misunderstands Patents

When I got a patent for my company's main trading model (MANY moons ago) I remembered being required to provide a working model of the software and the mathematics behind the system to the (VASTLY overpaid lawyer). I didn't know whether any of it went on to the Patent Office or whether it was just for the company's legal records. I also remember there was a charge for a patent search to make sure this model hadn't been patented before. Again, I didn't know if that was part of the lawyer's fees or if it was a patent office thing.

My business partners at the time were wise enough to keep me and my silly questions away from the time, so I'm glad you've cleared up a bunch of questions I had.
 
MWare said:
When I got a patent for my company's main trading model (MANY moons ago) I remembered being required to provide a working model of the software and the mathematics behind the system to the (VASTLY overpaid lawyer). I didn't know whether any of it went on to the Patent Office or whether it was just for the company's legal records. I also remember there was a charge for a patent search to make sure this model hadn't been patented before. Again, I didn't know if that was part of the lawyer's fees or if it was a patent office thing.
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They probably wanted to have a copy of the program on hand to help write the application, and just in case they had to submit it to the Patent Office. Most of the time they don't submit such things, but I've had a few applicants send me examples of their work, when they thought it was difficult to understand how it works just from the description.

As for fees, they probably did their own in-house search, in order to see if it was worth going through the hassle of applying, and they would have charged you for that, but they may also have been passing your filing (and other) fees onto the office on your behalf. There's lots of different ways to arrange such things, so it's hard to say for sure.
 
Horatius said:
when they thought it was difficult to understand how it works just from the description.
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I do the software part, so I consider most of the logic behind it akin to voodoo with chicken bones, but hey it pays the bills.

Horatius said:
As for fees, they probably did their own in-house search, in order to see if it was worth going through the hassle of applying, and they would have charged you for that, but they may also have been passing your filing (and other) fees onto the office on your behalf. There's lots of different ways to arrange such things, so it's hard to say for sure.
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I hope no offense was taken from my overpaid comment if you are a patent lawyer yourself.

Thanks again for the info.
 
Today's commentary refines the subject matter further. I am pleased that Dr. Dreyfuss has proffered remarks in harmony with my own. But I am also pleased that Mr. Randi has so concisely expressed the principal bases of his distaste for the patent system:
I must say that my major objection to the actions of the USPTO has always been that their occasional acceptance of rather silly and frivolous claims, tends to lend validity to these claims; those who see a patent number attached to an advertisement will probably – very erroneously – assume that the claim has passed muster at the USPTO – a federal agency of the US government! – and thus should be legitimate. Naïve investors often just need a hint of legitimacy to convince them, and such connection might do just that. Life savings invested in spurious schemes such as dowsing devices and magnetic healing gimmicks constitutes a very popular and lucrative racket.
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I feel compelled to point out a pleasant harmony. I have long thought that these objections were his main (but not exclusive) concern, and these objections had a significant degree of merit. Quoting from an earlier post of my own (quoted in part above):
Having spent some effort trying to explain why Mr. Randi is wrong, I want to spend some time explaining the aspects in which Mr. Randi is right.

First, some (apparently) pseudoscientific or near-pseudoscientific patents occasionally get through.
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Fourth, the fact that a patent issues does not mean that the invention actually works, or that it works as well as the inventor says that it does.
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And finally, many patent holders falsely convey the impression that, because the invention has "earned" a US patent, that the invention works and has a governmental endorsement. Such an impression is almost always false.
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The title of this thread, "Mr. Randi Misunderstands Patents," would probably be too forceful today. His understanding seems to have improved.
 
me said:
There are a lot of howlers there, but take a look at a patent application (NOT an issued patent!!) for Godly Powers.
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The "inventor" on this patent application is Christopher Anthony Roller, who is dicussed at length in Mr. Randi's commentary of 5 October 2007.
 
Brown said:
The title of this thread, "Mr. Randi Misunderstands Patents," would probably be too forceful today. His understanding seems to have improved.
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Goodness, is the pendulum swinging back the other way? In a recent issue of Swift, Mr. Randi said:
Well, I haven’t noticed any general improvement [in patent quality]. The Office still appears to have poorly-informed examiners laboring there, treating seriously all sorts of pseudoscientific notions that dunderheads submit for their blessing, hoping that their perpetual-motion and free-energy systems – not to mention the sprinkling of dowsing-rod delusions such as the Quadro Locator, DKL LifeGuard, and Sniffex (last week’s lead item) – will get numbers assigned to them.
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I'm not sure what to make of these remarks.

Mr. Randi says he hasn't observed any improvement in patent quality. Although I'd be happy to be proved wrong, I expect that he has not noticed any improvement because (1) he does not check issued patents for quality (2) he does not check the "file wrapper" to see whether a competent examination has been made and (3) he is pretty much unqualified to speak on the question of whether an examination is good or not.

In other words, his stinging words may be a reflection of his own ignorance.

And instead of lobbing criticism at the cranks and nuts and lunatics who file nutty patent applications, Mr. Randi seems to think that it is the USPTO at fault for receiving foolish patent applications. The USPTO disn't write the damned things, the cranks and nuts and lunatics did. And these guys pay fees to have their applications examined whether the subject matter is goofy or not.

What does Mr. Randi think the USPTO should do? Take the applicants' money and not even examine their ideas? Toss them out the door with not so much as a how-do-you-do? Sorry, legally the USPTO cannot do that. If an applicant pays for an examination, then the applicant should get an examination. Should the crank have his "invention" treated seriously? Damn right he should! That's what he's paid for.

If Mr. Randi is arguing--and I think he is to at least some degree--that the examination should be a competent examination, then I heartily agree. It is well known among patent practitioners that a significant number of examinations are below the standards required by not only the Congress, but by the USPTO itself.

Getting an examination is not the same as getting a patent, of course. As I have pointed out in this thread (and in threads linked herein), there are far more goofy patent applications than there are goofy issued patents. The issuance of ridiculous patents is a problem, yes, but a far more serious problem is the denial of legitimately patentable subject matter based upon unreasonable grounds.

For the past several years, the problem has NOT been that it is too easy to get a patent (and therefore all sorts of stupid stuff gets patented). Rather, the problem has been that legitimate inventions aren't getting patented because examiners aren't giving the ideas fair analysis and a fair shake.

Why has this dynamic developed? There are many reasons. As best I can tell, the USPTO has a serious case of "Dilbert-itis" that is crippling its ability to perform well. For example, someone high up in the USPTO announces that too many poor-quality patents are being issued (which may be true). From this, it is concluded by the lower echelons that too many patents are being issued, some good and some poor. Those even lower in the USPTO quickly realize that the easiest way to reduce the number of poor patents is, of course, to reduce the number of all issued patents. In this way, the noble notion of improving quality morphs into a blind quota system, with the USPTO denying patents more frequently without regard to quality or inventiveness.

In addition, the point system used to gauge USPTO examiners' performance seems to be malevolently designed to ensure that the examinations will be poor.

Chances are that the poor examinations will result in fewer goofy patents, not more.

Now, having said all that, there is a risk here. (I'm not convinced that the risk is a serious problem, but it does exist.) Most patent rejections are based upon analyses of disclosures in other patents or scientific/technical journals. A typical rejection asserts that the claimed invention is an obvious variation of what has been done before, as shown by these patents or journals. Many of the cranks, however, pronounce "scientific" principles that are so "revolutionary" or otherwise unconventional that it may be impossible for an examiner (no matter how competent) to find any previous patents or journals that are close. This could make rejection of the claims more difficult from an examiner's point of view. And if an examiner cannot reject a claim, the examiner has no choice but to allow it. That's the law.
 
Brown said:
Now, having said all that, there is a risk here. (I'm not convinced that the risk is a serious problem, but it does exist.) Most patent rejections are based upon analyses of disclosures in other patents or scientific/technical journals. A typical rejection asserts that the claimed invention is an obvious variation of what has been done before, as shown by these patents or journals. Many of the cranks, however, pronounce "scientific" principles that are so "revolutionary" or otherwise unconventional that it may be impossible for an examiner (no matter how competent) to find any previous patents or journals that are close. This could make rejection of the claims more difficult from an examiner's point of view. And if an examiner cannot reject a claim, the examiner has no choice but to allow it. That's the law.
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I think this is the heart of the problem. Trying to reject a "goofy" application solely on the basis of obviousness is playing into their hands, as it implicitly accepts the utility of the claimed subject matter.

I feel the Patent Office should be encouraging the examiners to be more proactive in rejecting goofy patent applications on the basis of lack of utility, since that's really the problem with these applications. Of course, as you mentioned, you have to guard against frivolous rejections based on utility, which can be difficult.

However, at least here in Canada, we're a bit hamstrung by the jurisprudence, which has held that commercial success can be taken as evidence that the subject matter has utility - that is, if you can get enough people to buy your snake oil, you can use that fact to establish a presumption of utility. Of course, all of us here can spot the obvious flaw in that reasoning, but it's what the examiners have to work with. To rebut this presumption, the examiner needs some sort of positive evidence of a lack of utility - evidence that often is not easily available.
 
Brown said:
I mentioned that there are some real problems facing the US Patent and Trademark Office. None of these involves perpetual motion, although bad science is involved tangentially. There are three major "shocks" to the US system, coming from all three branches of government.

From the Legislative Branch: The Congress is considering sweeping patent reform legislation. Some of the proposals make sense and some are so stupid that it's astonishing that they would ever go anywhere. Chances are that patent reform from the Legislative Branch will not go anywhere soon, but it is not dead yet, and folks who work in the patent field are reeling under what might be radical and foolish changes.

From the Judicial Branch: Three months ago, the United States Supreme Court issued a decision in the case of KSR Int'l Co. v. Teleflex Inc.. This case increased the flexibility of rejecting patent applications and voiding issued patents on grounds of obviousness. Incredibly, there are early indications that the USPTO is using this decision as a basis for providing shoddier examinations, even though the Supreme Court's opinion itself criticized (even insulted) the USPTO for providing shoddy examinations.

From the Executive Branch: The USPTO has just adopted a sweeping set of new rules, expected to take effect in two months, that will make it much harder to get a patent. These rules will affect all patent applications, not just those of the cranks, and the impact of these rules could be enormous. The purpose of these new rules, ostensibly, is to make patent examination easier and patents stronger. These might be noble purposes IF THE APPLICANTS WERE ASSURED THAT, IN EXCHANGE FOR ALL THIS EXTRA EFFORT, THEY WOULD BE GUARANTEED A THOROUGH, PROFESSIONAL EXAMINATION. Unfortunately, the rules are pretty one sided: the applicants have more obligations put on them, but they have no guarantee that the examiners will do a better job. Before these rules were adopted, the number one complaint was not that unworthy patents were being issued, but rather that deserving patents were being rejected because the examiners weren't doing their jobs. What the USPTO has done is comparable to a store taking notice that there are a lot of angry customers at its complaint department, so it "solves" the problem by reducing the hours that the complaint department is open. Voila! Fewer complaints!

These are the major concerns in patents in the US today. In view of these developments, there is no serious concern about silly patents for perpetual motion machines.
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Here is an update on what I called the three "shocks."

From the Legislative Branch: The sweeping patent reform legislation has fizzled out for the time being. Some of the more sensible proposals are still being bandied about, but the really stupid ones seem to be stuck in the mud for now. Patent reform is (so far anyway) not a big issue in the 2008 elections.

From the Judicial Branch: The effect of KSR Int'l Co. v. Teleflex Inc. has not been quite as bad as it could have been. The USPTO made an effort to show that it intended to apply the principles of the case fairly, and not abuse them. The case has required an alteration of strategies for those seeking patents, but most of the alterations have been for the better.

From the Executive Branch: The USPTO's sweeping set of new rules was stayed by a federal court, so the rules are suspended indefinitely. The fate of the rules is now in the hands of the Federal Circuit Court of Appeals. The USPTO is pushing for several different rule sets that, while not as sweeping, are intended to make its own job less difficult and place additional burdens upon applicants.
 
Clearly we need a JPTO (JREF Patent Trademark Office) that reviews the patents prior to the other patent offices reviewing them.

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T'ai Chi said:
Clearly we need a JPTO (JREF Patent Trademark Office) that reviews the patents prior to the other patent offices reviewing them.

..
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Oh, great plan. That means I have to read this crap twice!!
 
CFLarsen said:
Why do you have a problem with skeptical scrutiny?
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After all those years of dealing with him, do you really have to ask? I mean, it´s not like the answer isn´t obvious to anyone who knows him.
 
Chaos said:
After all those years of dealing with him, do you really have to ask? I mean, it´s not like the answer isn´t obvious to anyone who knows him.
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Not everyone is aware of his recorded history.
 
CFLarsen said:
Not everyone is aware of his recorded history.
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Good point.

Though, perhaps, unless of course you, unlike him, have a new point to make, simply linking to that recorded history would be easier repeating the whole thing? Not to mention, it would save you (and those of us who already know that history) a lot of time.
 
Chaos said:
hough, perhaps, unless of course you, unlike him, have a new point to make, simply linking to that recorded history would be easier repeating the whole thing? Not to mention, it would save you (and those of us who already know that history) a lot of time.
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Just more complaining, no action. Typical of the skeptic clubs.

Let's get back to patents. Maybe Plait will actually do something more than complaining, but doubtful.
 
T'ai Chi said:
Just more complaining, no action. Typical of the skeptic clubs.
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Last time I checked, this was a discussion forum. So what´s so wrong with discussing things?

Let's get back to patents. Maybe Plait will actually do something more than complaining, but doubtful.
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It would help help your case tremendously if you told us exactly what Randi or Phil are supposed to do. Not that I´m actually expecting you to make a constructive contribution to this debate, but I´m always willing to be pleasantly surprised.
 
Chaos said:
It would help help your case tremendously if you told us exactly what Randi or Phil are supposed to do. Not that I´m actually expecting you to make a constructive contribution to this debate, but I´m always willing to be pleasantly surprised.
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Try responding to Brown's points, if you can.
 
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