Intellectual Property Prospectives
USPTO Update—March is Women Inventors' History Month
by Brian Elfman, Contributing Editor

Following the intense political acrimony that marked its middle and late 90s so roughly, the United States Patent and Trademark Office (USPTO or PTO) is a much settled-down agency in 2002. Of course, the former Director of the USPTO, Q. Todd Dickinson, laid much of the groundwork towards restoring the lost decorum caused by his predecessor.

Here's an update. Appointed by the Bush Administration, James E. Rogan was confirmed by the Senate as Under Secretary for Intellectual Property of the Department of Commerce and Director of the USPTO in December, 2001. He comes in with a great deal of work-in-progress. In about two years, the PTO starts moving into its new mega-campus in Alexandria, Virginia, known as the Carlyle Development just outside of old town. It will take the 7000+ employees from out of a couple dozen buildings or so in Crystal City into over 2 million sq. ft. of campus office space. Two garages will accommodate 4000 cars. The project planning dates back to the late 80s.

More on current PTO happenings.

• For FY2003 the PTO will realize a substantial increase in its budget from $1.2 billion to $1.4 billion. Recruiting new examiners is a high priority. This means almost a thousand jobs for engineers. Have you ever though about a career as an examiner? Check out www.uspto.gov/web/offices/ac/ahrpa/ohr/jobs/exam.htm. And there's more info at www.popa.org. Anyways, for years we've been carping over the snatching of substantial PTO fees by the Administration. This year the Administration snatches $207 million in fees (for the general fund). Notice the increase in budget. The Lord giveth and the Lord taketh.

• Did you know the first woman employed by the patent office to receive equal pay was Clara Barton in 1854? With the outbreak of the U.S. Civil War in 1861, she then founded the American Red Cross.¹ This month (March) the USPTO sponsors Women's History Month (www.uspto.gov/web/offices/com/speeches/02-18.htm).

  The first patent granted to a lady was to Mary Kies in 1809 for a method of weaving straw with silk (Inventors Museum).

  Although the main page of Inventors Museum for women mentions that the U.S. Patent Act of 1790 opened the door to lady inventors, the wonder is about the Act's wording. You see, the Patent Act of 1790 was drafted by Thomas Jefferson. In the Act, Jefferson expressly declares variously in the Act language "…and pay to the said patentee…his, her or their executors…" Jefferson envisioned women as inventors.²

• Some of you may know about perceived legal conflicts between antitrust law and patent law. And if you've read some of my earlier articles in '99 and '00, you know that patent quality is a major issue. The effects of such weighty issues are being debated in a six-month series of hearings being held in Washington, D.C., and at the University of California at Berkeley. To illustrate the breadth of IP, with an issue-to-issue focus per panel per hearing, we're talking 25+ hearings times several panels over six months! Good grief.

  The panels constitute a who's who of the IP world, representing each of the special interest groups, like independent inventors and the patent bar (www.usdoj.gov/atr/hearingp.htm). The public is invited to submit comments.³

  Basically, the feds are complaining that too many patents are being issued. And not just too many, but that patent examination is less than thorough. The consequence is that there are lots of patents issued that should not. Patent quality is a serious issue within and without the PTO and the international patent communities. The art most noted for crappy patents (this term invented by Greg Aharonian) is software. Ranking right up with software are so-called business patents. For more on this, check out www.bustpatents.com.⁴

  What escapes me is this. And this is true of the stuff that goes on when a patent commissioner engages in a patent agreement with another country. Our patent system is constitutionally predicated. Period. The Sherman Act of 1890 and antitrust law followed a hundred years of settled decisional patent law. What is to be the outcome of all these hearings? Suppose the DoJ/FTC get together and go to Congress and say "There's too many patents beings granted." What's Congress to do? Stop granting patents? Note to DoJ: How come you're agonizing over crappy patents when you're letting MS off the hook? We'll take our answer on the air. Anyway, I'm convinced all that investment of time and money into these hearings would have been better spent on a Presidential Patent Commission. Then the results would be more credible by light-years.

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