Rethinking The Patent Office
Entrepreneurs tend to have a lot of things that they want to patent, trademark, or copyright. That means going through some government bureaucracy to get things done. Is it exasperating? Yes. Confusing? Obnoxiously so. Does it have to be that way? No, not at all.
When you're an entrepreneur like me, you tend to have a lot of things that you want to patent, trademark, or copyright, and that means I have to go through some government bureaucracy to get things done. Is it exasperating? Yes. Confusing? Obnoxiously so. Does it have to be that way? No, not at all.
In fact, it turns out it wasn't that way until relatively recently—in my lifetime, even. So to find out more, I spoke to a gentleman whom I know very well. His name is Steven Thrasher, and he's an entrepreneurial intellectual property attorney. He has decades of experience dealing with patents as well as helping people like me out with our own United States Patent and Trademark Office (USPTO) issues, so he knows his stuff. And, after we talked the other day, he had a few ideas on how to change the system—and other government agencies—to actually function well instead of impeding creation.
The USPTO, in its modern form, was established in 1952. Back then, filing a patent or trademark was a fairly simple process. Few people worked at the organization overall, and they knew the steps by heart. Those folks knew all of the goals and systems involved, so if you came in there to file a patent, it was easy. This was a simple system, with most inventors only ever paying one small fee.
Have you ever heard of Gall's Law? Steven introduced me to the idea. Put simply, it is this: A complex system that works is invariably found to have evolved from a simple system that worked. A complex system designed from scratch never works, and cannot be patched up to make it work. You have to start over with a working, simple system.
This, in a nutshell, is what happened to the Patent Office. In 1952, it was simple. Then, over the years, things got more complicated, and yet for decades it was OK.
'Your old guard that were around when these new processes were introduced,' Steven explained,' they still had the ability when they're in the system to nudge things to their proper place and get processes done. As they retired, you had a typically bureaucratic class replace them. They have good intentions, but they just don't understand how the processes fit together, and they have different, often process-counting, goals.'
A simple system becomes very, very complicated, and that one simple fee becomes hundreds of complex fees for every conceivable micro-step in the process.
'So it started with an expert class,' he said. 'Now you have a bureaucratic class that values the procedure over the original outcome-oriented goal of protecting intellectual property.'
If you wanted to work with the USPTO when it started, you could read a book called The Manual of Patent Examining Procedure. Steven was able to get his hands on a copy of the earliest one from decades ago.
'My earliest mentor, a guy named Harry Post, had a book—The Manual of Patent Examining Procedure—that was about 250 pages long. He got it when he started back in the late 1950s,' Steven said. 'Today, that same manual is over 3,000 pages long.'
In the course of doing my due diligence, I did some research. You can find The Manual of Patent Examining Procedure online—they have PDFs dating back to 1948. So I pulled the one from July 1958, the latest copy you can get that Harry might have had. Sure enough, it's 259 pages. Today's version is much, much longer.
What this all boils down to is that today, if you need to get a patent or trademark on something, not only are the fees prohibitive, but the entire process is opaque and complex.
Steve told me about a client who needed help getting through it, and in the end, was sent a letter because they didn't pay enough. It didn't say how much was owed or what fees were owed. But how much should they cough up?
'So my assistants and I called the patent office,' Steve said. 'We had three different answers for the fees we needed to pay. It took my assistant nearly 12 hours, took me nearly five hours, and the response papers were 16 pages of long documentation and copies to pay a $206 fee, which we're not even confident is the correct amount or type of fee that is owed. To be safe, we just paid the highest fee that was quoted.'
This is why people get frustrated with government agencies.
I could go on and on about all of the complications here with the system, but ultimately, what does this mean for the future? Steve believes that, based on the fiscal pressures the country is under, we will see a simplification of the process, and part of that is based on the need for inter- and intra-agency communication.
'Right now everybody has their own silo,' Steve told me. 'Bureaucrats love their own silo because that gives them control over their defined responsibility, and in a sense power in that silo.' This leads to a lack of communication between the people inside the agency. Outside the agency? Forget about it. Rarely happens.
The solution is simplification and communication. We need to get people talking, sharing data between each other, and breaking down these complex systems and ideas. It doesn't have to be this difficult.
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