just_n_examiner (just_n_examiner) wrote,

Vanity Patents

I received the following comment in response to one of my recent posts:

"The patents that get the public's fur up (as it should) are the "stick" and "swing" patents."

I'm here to tell you....I think that's wrong.

Is anyone out there familiar with the theory of rational ignorance? In a nutshell, it says that when the cost of educating oneself (in time, cost, etc.) exceeds the potential benefits derived from said education, it makes more sense to stay ignorant.

There are variants to this theory, including one that is posited in Mark Lemley's 2001 paper Rational Ignorance at the Patent Office. In it, Lemley discusses whether devoting additional resources to the examination of patents is warranted, and where it is that you reach the point of diminishing returns on those additional resources.

So go! Read the paper and then come back and we'll talk.


Now, let me pose a question. Is there really anyone out there who seriously worries about being sued for exercising their cat with a laser pointer? For using a stick to play fetch with their dog? Do you warn your children not to swing sideways on a swing, for fear of violating intellectual property laws? I assume not.

So why is everyone so outraged by these patents having been issued??? As Lemley says in his article, doesn't it make more sense to concentrate the examining resources of the Office on important (however you want to define that) applications?

If you agree with Lemley (and his theory does make sense, at least on a certain level), then 'vanity patents' (which I define as patents for which there is absolutely no chance of ever be asserted) should be at the very bottom of the list of 'important' patent applications, and consequently (according to the theory) are not worth the expenditure of lots of Office resources in their examination.

It's enough to make you think that it would be reasonable to instruct the examining corps that whenever they are presented with one of these vanity patents, they should not spend a single minute conducting a search, but simply issue the thing and spend the time they have saved examining the next application. (Granted, that does leave the issue of having some method of identifying vanity patents.)


So if you want to argue that there are problems at the Patent Office, well, that's fine. Be my guest. But could you go to the trouble of finding some real evidence of those problems to back up your arguments??

Please, don't hold up a few vanity patents as being indicative of problems at the Patent Office.

Because they're not.

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