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Why the DOGE Should Take Aim at the USPTO

slh657
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“If Musk and Ramaswamy are serious, ‘Patent Durability’ is the USPTO solution they need to be concerned with.”

Donald Trump’s appointment of Elon Musk and Vivek Ramaswamy to head the new Department of Government Efficiency (DOGE) has given hope to many people who are impacted by inefficiency in government. One such group is American inventors, who seem to have been forgotten this election cycle in the midst of all the talk concerning those impacted by the Departments of Education and Labor.

American inventors rely on the United States Patent and Trademark Office (USPTO), which from the outside looks efficient, at least, because it does not draw funding from Congress. An inside look, which Americans voted for in November, reveals a USPTO that is fraught with inefficiency. The consequence is that American inventors and their businesses rarely receive just compensation from users of their technology, and are easily preyed upon by outside actors.

The Cost

Anyone who has ever sought a U.S. utility patent, or represented someone seeking a U.S. utility patent, is familiar with filing, prosecution, and maintenance fees charged by the USPTO. These fees make up 40% to 60%of the overall costs associated with U.S. utility patents. Every inefficiency in the U.S. patent system starts with these fees, and it is derived from the fact that inventors pay the exact same fees for entirely different inventions, as if a slightly new mousetrap and a revolutionary new rocket ship have the same impact on the business world.

This means that patents for both the slightly new mousetrap and the revolutionary new rocket ship each have the exact same protections. For inventors of the slightly new mousetrap, which may be worth $50,000, as well as indigent inventors, it means they are barred from the U.S. patent system because the all-in costs to procure (e.g., not even enforce) a U.S. utility patent are about $15,000-$23,000 for micro and smaller entities, and $23,000-$30,000 for larger entities.

For inventors of the revolutionary new rocket ship, which may be worth $50 billion, it means they have insufficient tools to enforce their rights.

One way to see the problem is by comparing the U.S. patent system to medicine and the insurance industry. In medicine, doctors don’t prescribe the same medications to treat diabetes and cancer. They prescribe insulin to diabetic patients and chemotherapy to cancer patients. In the insurance industry, agents don’t issue life insurance policies with the same premiums to all insureds. They account for heart conditions and past histories of smoking. In both instances, there is a critical tailoring that occurs in order for the goal to be achieved.

The USPTO has no such tailoring – it has uniformity in all things money, and American inventors are suffering as a result. There is a solution to this problem, and if ever there were a time for it to be implemented, the time is now, with Musk and Ramaswamy.

The Solution

The solution is “Patent Durability”, which would allow American inventors to bargain for individual elements of their patent protection with the USPTO, and in exchange pay a proportionate amount in all USPTO fees via an actuarial process. This means that inventors would be able to bargain for less durable patent protection (e.g., via caps on patent term, future damages, future assertion power, and numbers of as-filed claims) and pay reduced USPTO fees, and also bargain for more durable patent protection (e.g., via increased Inter Partes Review institution fees, and relaxed patent eligibility standards) and pay increased USPTO fees. Values for these elements (and there could be more) would be fed into a Patent Durability calculator, which would output a USPTO fee schedule via an actuarial process. The Patent Durability calculator would decrease fees for less durable elements and increase fees for more durable elements, all with a newly imparted tailoring to patents. That is, the durability, or strength, of U.S. utility patents and all USPTO fees (and attorney fees) would be tailored to the value of inventions.

Give Patents Power Again

Giving this power to American inventors would cause more patents to issue, which would reveal more technical disclosures to the world. It would also cause each new patent to be issued and enforced with far fewer back and forth communications between inventors, attorneys, patent examiners, and judges. And if Musk’s technical capabilities were employed with the USPTO’s adoption of a Patent Durability calculator, patents might even be issued, enforced, and expired so dynamically that they would function like the internet to facilitate trade between inventors and users of technology, who at present are spaced very far distances from one another in an intellectual commerce sense.

This means that inventions would spend far less time on hard drives of inventors, where they are currently ripe for the picking. It means inventors and their businesses would receive just compensation for inventive efforts, and would not be preyed upon by outside actors.

If Musk and Ramaswamy are serious, Patent Durability is the USPTO solution they need to be concerned with. American inventors are counting on it.

Image Source: Deposit Photos
Author: garagestock
Image ID: 133247770 

 
 

 

JOHN POWERSJohn Powers is the Founder of The Powers IP Law Firm. As an attorney, the majority of John’s time has been devoted to patent procurement, or, getting patents for clients.