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==Criticisms==
==Criticisms==
The USPTO has been criticized for granting patents for impossible or absurd, already known, or arguably obvious inventions.<ref name= "ross"> Philip E. Ross, [http://www.forbes.com/global/2000/0529/0311090a.html ''Patently Absurd''], Forbes.com, May 29, 2000.</ref>
The USPTO has been criticized for granting patents for impossible or absurd, already known, or arguably obvious inventions.<ref name= "ross"> Philip E. Ross, [http://www.forbes.com/global/2000/0529/0311090a.html ''Patently Absurd''], Forbes.com, May 29, 2000.</ref>

==Inviolability==
Is the USPTO is inviolable?


===Controversial patents===
===Controversial patents===

Revision as of 17:19, 29 October 2009

"USPO" redirect here. For United States Post Offices, see U.S. Post Offices.
United States Patent and Trademark Office
Seal of the United States Patent and Trademark Office
Agency overview
Agency executive
Websitewww.uspto.gov
PTO headquarters in Alexandria, Virginia
Relief representing the Patent Office at the Herbert C. Hoover Building.

The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.

The USPTO is currently based in Alexandria, Virginia, after a 2006 move from the Crystal City area of Arlington, Virginia. The offices under Patents and the Chief Information Officer that remained just outside the southern end of Crystal City completed moving to Randolph Square, a brand new building in Shirlington Village, on April 27, 2009. Since 1991, the office has been fully funded by fees charged for processing patents and trademarks. The current head of the USPTO is David J. Kappos, who was sworn in on August 13, 2009[1] following the United States Senate's confirmation of his appointment by President Barack Obama.[2] He succeeded John Doll, who served as acting head following the resignation of Jon W. Dudas at the end of the George W. Bush administration.[3]

The USPTO cooperates with the European Patent Office (EPO) and the Japan Patent Office (JPO) as one of the Trilateral Patent Offices. The USPTO is also a Receiving Office, an International Searching Authority and an International Preliminary Examination Authority for international patent applications filed in accordance with the Patent Cooperation Treaty.

Mission

The legal basis for the United States patent system is Article 1, Section 8 of the United States Constitution, wherein the powers of Congress are defined. It states, in part:

"The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

The mission of the PTO is to promote "industrial and technological progress in the United States and strengthen the national economy" by:

Structure

As of September 30, 2008, the end of the U.S. government's fiscal year, the PTO had 9,518 employees, nearly all of whom are based at its huge five-building headquarters complex in Alexandria. Of those, 6,055 were patent examiners and 398 were trademark examining attorneys; the rest are support staff.[4] The total employee count has risen from 8,189 at the end of fiscal year 2006; at the same time, there were 4,883 patent examiners and 413 trademark examiners.[5] Patent examiners are generally scientists and engineers who do not necessarily hold law degrees, while all trademark examiners must be licensed attorneys. All examiners work under a strict, "count[3]" based production system. For every application, "counts" are earned by composing, filing, and mailing a First Office Action on the Merits, and upon Disposal of an application.

The Commissioner for Patents oversees three main bodies, headed by the Deputy Commissioner for Patent Operations, currently Peggy Focarino, the Deputy Commissioner for Patent Examination Policy, currently Andrew Hirshfeld as Acting Deputy, and finally the Commissioner for Patent Resources and Planning, which is currently vacant.[6] The Patent Operations of the office is divided into 9 different technology centers that deal with various arts. [7]

Decisions of patent examiners may be appealed to the Board of Patent Appeals and Interferences, an administrative law body of the USPTO. Decisions of the BPAI may further be appealed to the United States Court of Appeals for the Federal Circuit, or a civil suit may be brought against the Commissioner of Patents in the United States District Court for the District of Columbia. The United States Supreme Court may ultimately decide on a patent case. Similarly, decisions of trademark examiners may be appealed to the Trademark Trial and Appeal Board, with subsequent appeals directed to the Federal Circuit, or a civil action may also be brought.

In recent years, the USPTO has seen increasing delays between when a patent application is filed and when it issues. To address its workload challenges, the USPTO has undertaken an aggressive program of hiring and recruitment. The USPTO hired 1,193 new patent examiners In Fiscal Year 2006 (year ending September 30, 2006),[8] 1,215 new examiners in fiscal 2007,[9] and 1,211 in fiscal year 2008.[4] The USPTO expected to continue hiring patent examiners at a rate of approximately 1,200 per year through 2012; however, due to a slowdown in new application filings since the onset of the late-2000s economic crisis,[10] and projections of substantial declines in maintenance fees in coming years,[11] the agency had reportedly imposed a hiring freeze.[12]

In 2006, USPTO also instituted a new training program for patent examiners called the "Patent Training Academy." It is an eight-month program designed to teach new patent examiners the fundamentals of patent law, practice and examination procedure in a college-style environment.[13] Because of the impending USPTO budget crisis previously alluded to, it had been rumored that the Academy would be closed by the end of 2009.[11] However, Acting Commissioner for Patents Peggy Focarino stated in a May 2009 interview that the Academy was not being shut down, but would be cut back because the hiring goal for new examiners in fiscal 2009 was reduced to 600.[14]

Fee diversion

For many years, Congress "diverted" about 10% of the fees that the USPTO has collected into the general treasury of the United States. In effect, this took money collected from the patent system to use for the general budget. This fee diversion has been generally opposed by patent practitioners (e.g., patent attorneys and patent agents), inventors, and the USPTO.[15] These stakeholders would rather use the funds to improve the patent office and patent system, such as by implementing the USPTO's 21st Century Strategic Plan.[16] The last six annual budgets of the George W. Bush administration did not divert any USPTO fees, and the first budget of the Barack Obama administration continues this practice; however, stakeholders continue to press for a permanent end to fee diversion.[17]

Patents

First United States patent
  • On July 31, 1790, the first U.S. patent was issued to Samuel Hopkins for an improvement "in the making of Pot ash and Pearl ash by a new Apparatus and Process." This patent was signed by then president George Washington.
  • The X-Patents (the first 10,280 issued between 1790 and 1836) were destroyed by a fire; fewer than 3,000 of those have been recovered and re-issued with numbers that include an "X". The X generally appears at the end of the numbers hand-written on full-page patent images; however, in patent collections and for search purposes, the X is considered to be the patent type — analogous to the "D" of design patents — and appears at the beginning of the number. The X distinguishes the patents from those issued after the fire, which began again with patent number 1.
  • Each year, the PTO issues over 150,000 patents to companies and individuals worldwide. As of February 2008, the PTO has granted over 7,950,000 patents.

Trademarks

The USPTO examines applications for trademark registration. If approved, the trademarks are registered on either the Principal Register or the Supplemental Register, depending upon whether the mark meets the appropriate distinctiveness criteria. However, this function is declining in popularity as trademark applicants move to cheaper, more straightforward state-by-state registrations. [18] [19]

Representation

The PTO only allows certain qualified persons to practice before the PTO. Practice includes filing of patent applications on behalf of inventors, prosecuting patent applications on behalf of inventors, and participating in administrative appeals and other proceedings before the PTO examiners and boards. The PTO sets its own standards for who may practice and requires that any person who practices become registered. A Patent Agent is not an attorney but has passed the same exam as a Patent Attorney. [4]

Patent Agents and Patent Attorneys must be registered with the USPTO. Patent agents can only act in a representative capacity in patent matters presented to the USPTO. They are not allowed entry into the Bar Association and may not represent a patent holder in a court of law. Both a Patent Attorney and a Patent Agent must pass an exam that has been written by the Patent and Trademark Office. To be eligible for taking the exam, the examinee must have a degree in either "engineering or physical science or the equivalent of such a degree." Thus, it is the technical aspects of one's education that is tested and most important to the USPTO. [5]

The United States allows any citizen from any country to sit for the patent (if he/she has the requisite technical background).[20] Only Canada has a reciprocity agreement with the United States, that allows confers upon a Patent Agent, similar rights. [21]

Individual inventors may file a patent application without being represented either by an Attorney or an Agent. The may also represent themselves (pro se). If it appears to a patent examiner that an inventor filing a pro se application is not familiar with the proper procedures of the patent office, the examiner may suggest that the filing party obtain representation by a registered Patent Attorney or Patent Agent.[22] The patent examiner cannot recommend a specific Attorney or Agent, but the patent office does post a list of those who are registered. [23]

While the inventor of a relatively simple-to-describe invention may well be able to produce an adequate specification and detailed drawings, there remains language complexity in what is claimed, either in the particular claim language of a utility application, or in the manner in which drawings are presented in a design application. There is also skill required when searching for prior art that is used to support the application and to prevent applying for a patent to something for which a patent may already have been granted. A patent examiner will make special efforts to help pro se inventors understand the process but the failure to adequately understand or respond to an office action from the USPTO can endanger the inventor's rights, and may lead to abandonment of the application. Once complete, the task of monitoring the office for new applications that may infringe on an existing patent begins.

Trademarks are a separate matter.

Electronic filing system

The USPTO will accept patent applications filed in electronic form. As of March 2006, inventors or their patent agents/attorneys can file applications as Adobe PDF documents. The web page for submitting applications is https://sportal.uspto.gov/secure/portal/efs-unregistered. Filing fees can be paid by credit card or by a USPTO “deposit account”.

Electronic retrieval system

The USPTO Web site provides free electronic copies of issued patents and patent applications as multiple-page TIFF (graphic) documents. The site also provides Boolean search and analysis tools.

The USPTO's free distribution service only distributes the patent documents as a set of TIFF files (see http://www.uspto.gov/patft/help/images.htm). Numerous free and commercial services provide patent documents in other formats, such as Adobe PDF and CPC.

Criticisms

The USPTO has been criticized for granting patents for impossible or absurd, already known, or arguably obvious inventions.[24]

Inviolability

Is the USPTO is inviolable?

Controversial patents

  • U.S. patent 5,443,036, "Method of exercising a cat", covers having a cat chase the beam from a laser pointer. The patent has been criticised as being obvious.[25][26]
  • U.S. patent 6,004,596, "Sealed crustless sandwich", issued in 1999, covers the design of a sandwich with crimped edges.[25][27] However, all claims of the patent were subsequently canceled by the PTO upon reexamination. [28]
  • U.S. patent 6,025,810, "Hyper-light-speed antenna", an antenna that sends signals faster than the speed of light. [24] According to the description in the patent, "The present invention takes a transmission of energy, and instead of sending it through normal time and space, it pokes a small hole into another dimension, thus, sending the energy through a place which allows transmission of energy to exceed the speed of light." [29]
  • U.S. patent 6,368,227, "Method of swinging on a swing", issued April 9, 2002 [30] by patent examiner Kien T. Nguyen,[31] was granted to a seven-year old boy, whose father, a patent attorney, wanted to demonstrate how the patent system worked to his son (aged 5 at the time of the application). The PTO initially rejected it due to prior art, but eventually issued the patent.[30] However, all claims of the patent were subsequently canceled by the PTO upon reexamination.[32]
  • U.S. patent 6,960,975, "Space vehicle propelled by the pressure of inflationary vacuum state", describes an anti-gravity device. In November 2005, the USPTO was criticized by physicists for granting it. The journal Nature first highlighted this patent issued for a device that presumably amounts to a perpetual motion machine, defying the laws of physics.[33][34][35][36] The device comprises a particular electrically superconducting shield and elecromagnetic generating device. The examiner allowed the claims because the design of the shield and device was novel and not obvious.[37] In situations such as this where a substantial question of patentability is raised after a patent issues, the Commissioner of the Patent Office can order a reexamination of the patent.

Controversial trademarks

Slow patent examination and backlog

Main article: Backlog of unexamined patent applications

The USPTO has been criticized for taking an inordinate amount of time in examining patent applications. This is particularly true in the fast growing area[needs update] of business method patents. As of 2005, patent examiners in the business method area were still examining patent applications filed in 2001.

The delay has been attributed by spokesmen for the Patent Office to a combination of a sudden increase in business method patent filings after the 1998 State Street Bank decision, the unfamiliarity of patent examiners with the business and financial arts (e.g., banking, insurance, stock trading etc.), and the issuance of a number of controversial patents (e.g., U.S. patent 5,960,411 "Amazon one click patent") in the business method area.

Effective in August 2006, the USPTO introduced an accelerated patent examination procedure in an effort to allow inventors a speedy evaluation of an application with a final disposition within twelve months. The procedure requires additional information to be submitted with the application and also includes an interview with the examiner.[41] The first accelerated patent was granted on March 15, 2007 with a 6 month issuance time.[42]

As of the end of 2008, there were 1,208,076 patent applications pending at the Patent Office. At the end of 1997, the number of pending applications pending was 275,295. Therefore, over these 11 years there has been a 439% increase in the number of pending applications. [43]

See also

Directors of the USPTO
1. ...
...
u. Bruce Lehman (1993 - 1998)
v. Q. Todd Dickinson (1998 - 2001)
w. James E. Rogan (December 2001 - 2004)
x. Jon Dudas (2004 - January 2009)
y. John J. Doll (January 2009 - August 2009) (acting)
z. David J. Kappos (August 2009 - present)

References and notes

  1. ^ Crouch, Dennis (2009-08-13). "Kappos Sworn in as Director". Retrieved 2009-08-17.
  2. ^ "David Kappos Confirmed as Patent and Trademark Office Director" (Press release). United States Patent and Trademark Office. 2009-08-07. Retrieved 2009-08-11.
  3. ^ Dennis Crouch, Patently-O Bits and Bytes, Patently-O blog, January 16, 2009. Consulted on January 29, 2009.
  4. ^ a b "USPTO Performance and Accountability Report Fiscal Year 2008" (PDF). United States Patent and Trademark Office. Retrieved 2009-04-23.
  5. ^ "USPTO Performance and Accountability Report Fiscal Year 2006" (PDF). United States Patent and Trademark Office. Retrieved 2009-04-23.
  6. ^ [1]
  7. ^ [2]
  8. ^ USPTO Annual Report 2006, Patent Performance
  9. ^ "USPTO Performance and Accountability Report Fiscal Year 2007" (PDF). United States Patent and Trademark Office. Retrieved 2009-04-23.
  10. ^ Crouch, Dennis (2009-04-12). "Economic Downturn => Downturn in Patent Filings". Patently-O.com. Retrieved 2009-04-13. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  11. ^ a b Quinn, Gene (2009-03-23). "Patent Academy Closing, USPTO Budget Crisis Deepening?". IPWatchdog.com. Retrieved 2009-04-13. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  12. ^ Quinn, Gene (2009-03-02). "PTO Hiring Freeze and Budget Problems". IPWatchdog.com. Retrieved 2009-04-13. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  13. ^ USPTO Annual Report 2006, The Nature of the Training Provided to USPTO Examiners
  14. ^ Quinn, Gene (2009-05-12). "An Interview with the Acting Commissioner for Patents". IPWatchdog.com. Retrieved 2009-05-24. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  15. ^ "President's proposed budget ends USPTO fee diversion in FY 2005" (Press release). United States Patent and Trademark Office. February 2, 2004. Retrieved 2006-11-24.
  16. ^ "Strategic Plan for the 21st Century". United States Patent and Trademark Office. February 24, 2006. Retrieved 2006-11-24.
  17. ^ Zuhn, Donald (2009-05-20). "Docs at BIO: Panel Offers Suggestions for Fixing the USPTO -- Updated". PatentDocs.org. Retrieved 2009-05-24. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  18. ^ "State Trademark Information". FindLaw For Small Business. February 11, 2008. Retrieved 2008-02-11.
  19. ^ "Trademark Electronic Search System (TESS)". United States Patent and Trademark Office. February 11, 2008. Retrieved 2008-02-11. Note: click on "Trademarks" then click on "TESS" tab.
  20. ^ 37 C.F.R. 11.7
  21. ^ http://www.uspto.gov/web/offices/com/sol/foia/oed/legal/legal11.pdf
  22. ^ Manual of Patent Examining Procedure, Chapter 400
  23. ^ List of registered attorneys and patent agents.
  24. ^ a b Philip E. Ross, Patently Absurd, Forbes.com, May 29, 2000.
  25. ^ a b Hal H. Varian (2004-10-21). "Patent Protection Gone Awry". New York Times.
  26. ^ Laura Weinstein (2002-10-21). "Stop the Patent Process Madness". Wired Magazine.
  27. ^ Sara Schaefer Muñoz (2005-04-05). "Patent No. 6,004,596: Peanut Butter and Jelly Sandwich". Wall Street Journal.
  28. ^ Reexamination certificate no. US 6,004,596 C1, September 25, 2007, retrieved from USPTO Public Patent Application Information Retrieval (PAIR), December 1, 2008 (request PAIR entry for Reexamination Control Number 90/005949 as "Application Number").
  29. ^ U.S. patent 6,025,810, col. 1, lines 30-34.
  30. ^ a b Jeff Hecht (2002-04-17). "Boy takes swing at US patents". New Scientist.
  31. ^ Teresa Riordan (2002-05-13). "Patents; The Patent Office faces huge backlogs, extremely technical inventions, and absurd ones". New York Times.
  32. ^ Reexamination certificate no. US 6,368,227 C1, July 1, 2003]], retrieved from USPTO Public Patent Application Information Retrieval (PAIR), August 22, 2008
  33. ^ Ball, Philip (November 10, 2005). "Antigravity craft slips past patent officers". Nature. 438 (7065): 139. doi:10.1038/438139a. PMID 16280998.
  34. ^ United Press International (2005). "Patent issued for anti-gravity device". Phyorg.com. Retrieved 2006-11-24.
  35. ^ Brian Handwerk (November 11, 2005). "Antigravity Machine Patent Draws Physicists' Ire". National Geographic News. Retrieved 2006-11-24.
  36. ^ An untraceable link was also included here as an additional reference.
  37. ^ Ramon M Barrera (examiner) (June 7, 2005). "Notice of Allowance and Fees Due (PTOL-85)" (PDF). 11/079,670 Space Vehicle Propelled by the Pressure of Inflationary Vacuum State. United States Patent and Trademark Office. p. 2. Retrieved 2006-11-24. Note: Navigate to the 'Image File Wrapper' to find the file; download and open with a PDF reader. The specific passage from the document follows: "The following is an examiner's statement of reasons for allowance: None of the prior art of record taught or disclosed the claimed superconducting shield and electromagnetic field generating means structure."
  38. ^ Dell Tries to Trademark 'cloud Computing'
  39. ^ Dell Cloud Computing Trademark Rejected
  40. ^ A netbook by any other name, or how Psion is going discover you have to use it or lose it
  41. ^ USPTO Accelerated Patent Examination
  42. ^ Press Release: USPTO grants first patent under accelerated review option
  43. ^ Gene Quinn, How to Fix the USPTO, IPWatchdog, November 21, 2008. Consulted on December 6, 2008.

Papers

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