Column on Overhauling the Patent System Contains Several Flaws, Attorney Contends

Michael Schrage’s column, “Inventing Ways to Speed Up Patent System,” (Sept. 6) chose to use the microprocessor patent of Gilbert Hyatt, which was pending for 20 years in the U.S. Patent and Trademark Office, as a jumping off point to expound on his perceived need for changes in the Patent Office. Schrage states that Hyatt filed seven continuation applications in the long string leading to the issuance of the patent. He then adds the attorney-bashing statement, “Patent attorneys love continuations: They bring more money.”

This cheap shot is, in my 10 years of experience as a patent attorney both in private and corporate practice, unfounded. In attempting to obtain a patent for a client, patent attorneys typically only file continuation applications when it is in the best interest of the client, as when the Patent Office has not yet been persuaded to grant a patent of reasonable breadth. The client typically has the option of filing or walking away without a patent.

Schrage said the Patent Office is “less enthusiastic” about continuations (than lawyers) but is apparently ignorant of the fact that by generating early final rejections, and thus forcing continuations, the Patent Office is able to collect additional application fees.

As one of the few areas of government to depend largely on user fees rather than taxpayer financing, the Patent Office, by accepting additional continuations fees, is able to better fund itself.

Schrage also states that by jumping to a law firm, a patent examiner with several years experience can double his or her salary. This ignores the fact that patent examiners are not attorneys, and thus cannot easily join law firms without first going to law school.

The suggestion that a satellite office could be opened in California also illustrates the writer’s ignorance of the Patent Office’s operation. The office has immense stacks of millions of documents, all of which are categorized. Duplicating this on the West Coast would be incredibly expensive. While patent searches one day will be performed electronically, that day has not yet arrived, and examiners must still wade through the stacks to perform searches.

Finally, Schrage suggests that patent attorneys and large companies pay additional fees to support the Patent Office. Larger companies currently pay double the fees of smaller firms and individuals. His “soak the rich” theory of charging patent attorneys is equally foolish, since such additional fees would only get passed on to all clients, further increasing costs.

Despite the anomaly of the Hyatt patent, the U.S. patent system works considerably better than those of other nations. The average time of 18 to 24 months between filing and issuance is unmatched. It typically takes four or five years to obtain a patent in Europe. In Japan, the wait for a first examination is 4 1/2 years, with the typical wait upwards of six years.

LESLIE S. MILLER

Patent Attorney

Saugus