semyendow: Why Can't Filing a Patent Be As Easy As Buying a Book?

Friday, 14 October 2011

Why Can't Filing a Patent Be As Easy As Buying a Book?

I am not a lawyer, and I don't wish to ever become one (on TV or in real life), much to the disappointment of my mother who once wished that would become my chosen profession. I was reminded of this recently when I reviewed an article that Scott Fulton wrote last month for ReadWriteEnterprise here about the recent changes in our patent law system. It seems we are headed down the wrong path, making it harder for entrepreneurs to obtain and contest patents.

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My intersections with our legal system haven't been pretty: my divorce, registering a trademark, and an appearance in court to evict my deadbeat renter. Yes, I did serve on a couple of juries. No arrests, thankfully.

What these events have in common is that none of them were things that I initially wanted to do. Including the trademark registration. You see, I was using the name Web Informant for sending out a series of email newsletters, and I have been doing so since 1995. A year or so later, a publishing firm who had (blank) Informant as their titles wanted to come out with a print version using Web Informant. I heard about their intentions and filed a trademark registration, fortunately a few weeks before their own attempt.

Now, on my application, I put the correct date of first use with the first issue of the newsletter, which was in September 1995. The other guys put their date as sometime in 1990, if memory serves me correctly, which was just false but there wasn't much I could do about, short of spending thousands on legal bills to contest the action. The fact that the Web as we all know it didn't really exist outside of a few places didn't really enter into the discussion. As they say on lots of TV legal shows, let's not confuse the issue with any facts.

Thankfully, things have a way of working out: the print publication went the way of the dodo, and my email newsletter and associated website have endured the test of time. But the whole thing left a bad taste with me for the trademark (and the associated patent) process.

Now we are changing things, so that the first to file will be given consideration for patents. This means if you are an entrepreneur, almost the moment of idea conception is when you need to engage a lawyer and get your application in. It almost seems as if the process is:

Think up a cool idea.
Find out if the dot com is taken and register it.
Find a patent lawyer and send in your application.
Start working on your product or service and build your business.

This seems wacko to me.

I realize that most of the world uses first to file as the criterion for patents, and in many parts of the world patents aren't respected at all. But still, this is a step backwards. Yes, there are places like Legalzoom that will help you through this process online, but still it isn't easy. Filing a patent should be like buying a book on Amazon.

Now, perhaps that is somewhat unfair: when you buy a book, you don't have to have this dialogue with someone to lay out all your alternatives and to walk you through the purchase process and the various options for different forms that you need to fill out. But why can't the Patent Office have some simplified process that has the forms online? It is probably impossible, but still.

Discuss