Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
More deeply, the very idea of a "patent examiner" has never made sense to me. It requires being expert in all things, which is impossible. It makes more sense to take someone who is an expert in a field, and put a "patent examiner" hat on them for a little while. Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents -- this would be a very bad sign.
Patent Examiners do specialize in their fields. It isn't something that is just a common pool subject to any patent that comes into the pipe.
From the USPTO[1]
What kind of degree do I need to apply, and which vacancy do I need to apply to?
The minimum degree required to be a utility patent examiner is a bachelor’s degree. There are dozens of STEM-related bachelor’s degree types that qualify, even if they are not the exact discipline listed in the title of the job vacancy.
For example, professionals with bachelor’s degrees ranging from engineering, mathematics, astronomy, space science, geophysics, oceanography, or hydrology could all apply to the "Patent Examiner (Physics)" vacancy when it is open. To see more details about which degrees best fit with which patent examiner vacancies, view this chart[1].
You can also attend one of our upcoming webinars or office hours to chat with a current patent examiner, or email us at JoinUSPTO@uspto.gov with your specific question.
> Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
I don't think this is a good strategy. These folks tend to have a poor understanding of patent law in my experience, and you need to understand the basics to do this right. (You fortunately don't need to know too much law to handle 90% of cases.) And these folks probably aren't very effective at patent searching even if they understand the legal parts. I think most people overestimate their own search abilities. I certainly did. Examining patents didn't level me up as much as humble me in that regard.
> More deeply, the very idea of a "patent examiner" has never made sense to me. It require being expert in all things, which is impossible. [...]
As saratogacx pointed out, at the USPTO, the vast majority of examiners have a specific technology they are assigned to. While the matching of examiners to their "art unit" is often pretty bad (I could go on a rant...), the situation is not as bad as you described. There are some generalist examiners, but as I understand it, they are in (basically) QA roles and don't need to know the technologies as much. Unfortunately, USPTO upper management seems to want to make examiners into generalists, which I doubt will work out as they want.
I agree that periodic rotations of industry folks into patent examiner positions is a great idea. It would help the patent system and give the industry folks some appreciation for what examiners do.
If you're worried about lack of expertise, you should be more worried about the courts. Judges and juries almost never have a background in the technology of the case they are working on.
Proof is in the pudding, as they say. I've been astonished by the quality of the submissions we've received the times we've fired up Project Jengo. And it's helped us successfully beat — and literally put out of business — the two patent trolls that have come after us.
Did you all pay for a normal invalidation search as well? I'm glad it worked for you all, but I think "spray and pray" is typically not a good strategy. I suppose you all had enough scale to reach the right people.
I’m sorry we’ve shown that going to law school is less valuable than some may have thought. My parents had that angst too when I decided not to practice law after going to law school myself. It worked out.
>It would help the patent system and give the industry folks some appreciation for what examiners do.
The examiners regularly approve absolute bullshit patents in my field that either obviously have prior work, and shouldn't be patentable anyway such as game mechanics. They clearly don't understand the work they're meant to be doing. Either patent law is horribly designed and needs to be razed to the ground, or it's being horribly applied.
If you go to a hospital that lacks the resources to provide proper treatment, should you be surprised to receive poor treatment even if your doctor was highly competent? That's basically the situation the USPTO is in. Examiners are on a quota system and they don't get enough time to do a good quality job.
With that being said, the majority of the time, the examiner made the right decision. You should check whether a patent was actually granted, for instance. Often when people are complaining about a dumb patent they're actually complaining about a dumb patent application that the USPTO rightly rejected. You should be complaining about the people writing such applications, not the USPTO.
Further, the USPTO is funded purely by fees, not taxes. Applicants want patents. That creates a perverse incentive to reduce patent quality to make it easier to get patents.
The parent clearly said that approved parents were bullshit, and I agree. I have several patents, and have seen how nonsense the process is. When lawyers obfuscate the text enough to confuse the patent examiner, the patent gets approved. I can't tell if an individual patent examiner is competent or knowledgeable, but patent decisions have nothing to do with factuality or novelty.
I do remember your comments from past threads too. It really interesting to hear the perspective from the patent office's side, but the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous. Any expert can read a sample of granted patents and tell you that. I'd estimate maybe 5% of patents in my field have any novelty, and that's being generous.
I'm sure this has more to do with incentives and the overall system, and that individual patent examiners would prefer to do a good job. But you have to admit that the results are atrocious.
> The parent clearly said that approved parents were bullshit, and I agree.
Just because they said it was granted, doesn't mean that it was. A lot of people here don't seem able to distinguish between a granted patent and a rejected patent application. Here are two examples that I bothered to reply to in the past:
> the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous
I don't think they do and I never said they do. The USPTO follows some legal standard that I personally don't agree with. I agree with you that too few granted patents have genuine novelty.
> But you have to admit that the results are atrocious.
No, I don't. You've seen a small selection of what the USPTO outputs. Only the bad cases appear in the news. In contrast, I've seen a far larger and unbiased selection and know that the majority is fine. Most applications are rejected. I probably rejected over 75% myself.
I have seen the results from searches of patents in my field, and the patents that my colleagues get granted. It's hard to find even a single good patent in the bunch.
Is there a way to sample 5 random ML patents? I'd be surprised if half were any good.
I think the quality of examination and search is excellent given how little time examiners have. But mistakes still happen too frequently, and the mistakes can be highly costly. Better to stop problems upstream in my opinion by giving examiners more time.
Patent quality is related but different. I agree that patent quality is awful, but there's only so much an examiner can do to influence that. Attorneys have basically gamed the system to write vague legalese that's patentable but basically useless. And to paraphase a supervisor I knew at the USPTO, "Just because it's stupid doesn't mean that it's not patentable". I can't reject them if it meets the legal standards but is stupid.
Look for "Notice of Allowance and Fees Due (PTOL-85)" and click on "PDF" on the right. Scroll to page 10 and look for the "Reasons for Allowance" section where the examiner describes in detail why it differs from the prior art.
I was more looking for your opinion on the patent in general.
While there are minor technical differences in exactly how rANS has been encoded/decoded before, and how Microsoft does it, the fact that Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS, much to the chagrin of the ANS's actual inventor, Jarek Duda, who wanted it to be public domain and implementable by anyone.
It seems to me like Microsoft got a patent on "doing ANS a little bit different" - they didn't have to, they could just do it the normal way, but this little bit of difference lets them secure a patent, and now they can pursue anyone who implements ANS to intimidate them with "how sure are you don't do ANS like we do? Let's get our multi-billion legal team, and your legal team, and find out. You have a legal team, don't you?"
In particular, this patent already had a final rejection in 2020. But Microsoft then took advantage of the "After Final Consideration Pilot" program, which sounds more like the USPTO trying to drum up trade, to get it re-re-re-examined.
> Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS
This is due more to people not understanding what the patent covers. The right response in my view is to educate people. Just because someone has a patent on a particular variation of X, doesn't mean that working on X is risky or what not. Just don't infringe their variation. When I was at the USPTO, I examined a lot of little variations of common things in my area (water heaters and car air vents, mostly) and I never worried that it would stop innovation as usually the point of novelty was not particularly groundbreaking, or even necessarily of interest to anyone aside from the applicant.
I'm wonder now if people working in patent offices actually think they're doing something good and are just overworked, while being completely unaware of the evil they're supporting. It sure sounds like you think there's value in it.
The patent office can be sued for not granting but not for granting. So they bias towards granting things they shouldn't and let the courts deal with the mess later.
> Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents
Unfortunately, "patent law" is a complex body of laws, legal decisions, and specialized procedures large enough to be its own distinct specialization for lawyers. While it's not impossible to become an expert in it without years of study, it is definitely not possible to be excellent at it.
Just to put it in perspective, the Manual of Patent Examining Procedure alone weighs in at over 4K pages of text.
More deeply, the very idea of a "patent examiner" has never made sense to me. It requires being expert in all things, which is impossible. It makes more sense to take someone who is an expert in a field, and put a "patent examiner" hat on them for a little while. Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents -- this would be a very bad sign.