In recent postings we have been pretty hard on the United States Patent and Trademark Office (USPTO) as well as on the US legal community and judiciary under the logic represented by the old tale about the U.K.-educated Greek farmer on a country road hitting his unmoving mule over the head with a large club. A passing English tourist could not resist injecting the comment that “Sir, you are not going get that mule to move by doing that!”, to which the Greek farmer had retorted in perfect Oxford English, “Madam, I know that. I am just trying to get his attention”.
We see at the USPTO website online that the USPTO is in fact trying to enter the 21st century. However, proposed new rule changes and more and more patent examiners is not the epitome of the desired solution. Unchecked, every institution tries to increase the scope of its powers and the realm of its influence, and in this regard the USPTO does not differ from other institutions. Increasing the staffing of the USPTO is not the solution. The proposed new rule changes merely shuffle around current practices and will be of little practical assistance if the underlying law and judicial decisionmaking is faulty.
To improve the current intolerable over-inflated patent situation in the USA, what needs to be done is for Congress and the courts to diminish the scope of patent protection to accord with the U.S. Constitution and thus, indirectly, to curb the USPTO’s powers and importance, thus ultimately reducing the number of patents filed each year. This can only be done by limiting patent protection to actual products and by eliminating patent protection for software, hardware configurations, ideas, methods and systems of doing something, for which, in our opinion, the U.S. Constitution does not provide a basis for patent protection.
In addition, we would make the Internet a patent-free zone by law, for the reasons given in our next posting.