No cure in sight for the sick, sluggish U.S. patent system

doctor bag
Credit: Sibin Arsenijevic

How many dumb patents do we need to approve before we fix the broken system?

Once again, the seasons are changing on the East Coast, which means I'm due for my annual possession by Beelzebub’s Death Flu. I’m sick, ill, and green, as well as violently expunging multicolored bodily fluids like clockwork.

Like most post-adolescent men who believe themselves on their deathbeds, I miss the Days of Mom, but instead, I lie here alone with a merciless cat that thinks nothing of meowing directly in my ear until I crawl out of bed to satisfy his endless food needs. Otherwise, I lie under covers and slowly suck in mystery liquids until my scotch-crippled antibodies drive out the demon germs. It's a fine strategy for me, he said, laboriously tying this anecdote to a point, but it’s not enough for the FTC.

The Federal Trade Commission seems to be tired of extravagantly long recovery periods for certain government arms, as evidenced by its open letter to the U.S. Patent and Trademark (PTO) office. Yes, the PTO is “sick” like me, though maybe “seriously ill” or “demonically plagued” is more appropriate. In short, the FTC is fed up with the PTO’s perpetually glassy-eyed stare and has asked PTO pinheads to get their collective thought organs out of their collective seat cheeks and “increase the quality” of patent awards. Even in my NyQuil-sodden state, I righteously concur.

The EFF joins the FTC chorus

As do the legal eagles at the Electronic Frontier Foundation (EFF), who, a week before the FTC wrote its letter, published a short and not so flattering analysis of a recently awarded patent covering the process of updating an existing order using your phone. No, it's not a bleeding-edge mobile app using the HTML27 prototype of Data’s positronic brain; it's a run-of-the-cell smartphone.

Use your phone to order a pizza, then text back one more time to change the order from medium to large, and voilà -- get sued! The patent is called “Notification Systems and Methods that Permit Change of Quantity for Delivery and/or Pickup of Goods and/or Services” and is owned by the ultralitigious patent troll -- er, intellectual property consolidator Eclipse IP, LLC.

Even dumber, the PTO awarded the patent after a federal court already invalidated a similar claim from other patents. It’s almost as though the PTO bureaucrats weren’t paying attention, but instead sitting in a circle on a saliva-stained carpet, surrounded by empty bourbon and Oxycontin bottles, and randomly stamping Approved and Rejected on stacks of patent applications, their clothes, and each other’s faces.

Keep this up and I’ll file for a patent of my own: “Trajectories and Methods for Alternating Television Entertainment Feeds Using Infrared, Bluetooth, Ethernet, Radio, Cellular, Child Labor, and/or Fingertip Transmission Mediums.” That way, unless you change the channels on your TV using your teeth, you’ll have to pay me a handsome settlement. (I’ll take scotch.)

I’m not asking for much, and neither is the FTC or the EFF. “Common sense” is a phrase that comes up, along with “paying attention.” Maybe keep in mind that we’re trying to stimulate the economy, not lawsuits. I’d come up with a pithier sentiment, but the meds are wearing off and I think Maginot’s heading this way again. I'd better get his order ready and to his liking.

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