Both Noveck and the “Committee on Intellectual Property Rights in the Knowledge-Based Economy” indicate the USPTO as one of the key things to be improved as part of any reform of the patent system. If one wants to become a patent examiner one can go to USAJOBS and type in “patent examiner” to view the available openings. There one will probably end up at job announcement LD220981 for a Computer or Electrical Engineer at a rate of pay between  $41,350.00 and $77,722.00. As with many government jobs, this rate of pay for a regsitered professional engineer seems to be substantially lower than that in the private sector. Indeed pursuing a career as a patent examiner in the USPTO it appears one can reach a maximum paygrade of GS-13 which works out to around $113007 for the top grade. Given this it seems unlikely that the USPTO will attract many of the so called best engineers to review the patents that are submitted. Given that the US has limtied quantities of engineers to draw upon, we might not want the best going to the patent office to review patents rather than researching or creating new devices, but it needs to be the case that the examiners are provided the resources and the time to stay abreast of the developments in the field they cover.  A similar disparity in pay exists for attorneys in government service and in the private sector.

In the past (and possibly the present) there has existed the possibility that an attorney might be ordered to serve as the defense counsel for indigents. Taking this, and jury duty, as guides one might propose that in the interests of promoting the progress of science and technology that it be the duty of professional engineers to review patents as an adjunct to the USPTO. Engineers could be selected by lot on some sort of basis to review a patent in their field. Naturally there could be some minor problems with this related to engineers objecting to this being a requirement of being registered as an engineer. More serious problems would arise from having to take measures to prevent conflicts of interest or the leaking of secrets prior to publication.

Such a system with the inclusion of the peer to patent system would decentralize the process of approving patents so that those actually working or at least expert in a field would be analyzing related patents. Furthermore it would solve the problem of finding and retaining appropriately qualified patent examiners because anyone with the appropriate expertise might be chosen as an examiner for a particular patent. It seems likely that there is some expertise that is related to approving patents separate from that of knowledge in the field, so it would most likely be necessary to assign the chosen field experts to correspond with an offical at the USPTO who would have the appropriate knowledge regarding patent policy and law.

A more detailed study would need to be undertaken in order to examine the feasability of this rather vague proposal. The most obvious issues are as follows. From what groups would the potential patent examiners be chosen? How would impartiality be enforced? How would the chosen examiners be compensated? In what capacity would the potential patent examiners be chosen, simple assistance or making decisions? Would appointed examiners be less diligent or skilled? How would this system affect the quality of patents issued? Would this system cause substantial disruption of industry given the number of patent applications in a single year? Would simply increasing the number of patent examiners in the current USPTO be a better solution? Would industry have a disincentive to apply for patents as applying for more patents could mean less work from their employees (as there would be an increased probability of some employee being chosen as an examiner)?

There are almost as many ideas for reforming the patent system as there are patents. What most have in common, however, is their acceptance of the standard patent paradigm: monopoly as a reward for innovation. This is probably no coincidence, since the Copyright Clause of the Constitution apparently authorizes Congress to grant only limited monopolies and not more exotic compensation. Ignoring constitutional concerns, however, we can try to imagine how a patent system might function without monopolies.

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In “Peer to Patent” Noveck suggests that patent examiners often have neither the time nor the resources required to conduct a thorough evaluation of a patent’s novelty or investigation into potentially applicable “prior art.” As a result, she claims that too many patents are granted upon an insufficient basis (termed “low quality” patents), thus impeding progress and causing needless litigation when companies are accused of violating the patent and must demonstrate that the patent should not have been granted.  Her proposed solution is to adopt the “Wikipedia approach” so that anyone can contribute ideas, including the presentation of prior art, novelty and utility.  She suggests that the advance in information technology sharing makes public participation in the patent review process desirable and efficient.

One obvious problem, which Noveck begins to anticipate but whose importance she subsequently minimizes, is that opening the patent process to public review would likely result in teams of scientists from opposing companies each attempting artfully to trash their competitors’ patents.  For example, a patent examiner may be presented with highly deceptive arguments intended to persuade him that a competitor’s patent has a basis in prior art when in fact it does not.  She argues that “if people produce information that is useful to the examiner, their personal agendas are irrelevant” (156).  What she does not fully acknowledge is that not all “information” is created equal.  In particular, the language used to convey a particular set of “facts” may well be biased or intentionally deceptive, further obfuscating the matter rather than clarifying it.  In such cases, it may well be that the patent examiner would need more rather than less time to evaluate the patent, and he may not be the most adept person at making such an evaluation in the first place.

Noveck calls this potential flaw “unproblematic” by simply building into her model a requirement that contributors sign an affidavit affirming that they have no conflict of interest.  This idea seems much more effective in theory than in practice.  The people most eager to make contributions will be exactly the people whose stakes in the outcome are large.  Often with sizeable resources at their disposal, we can be confident that they will find creative ways of circumventing this requirement, by bribery, deception, or otherwise.

A system is only as good as its capacity to enforce its requirements.  If the contributors offer their “opinions” it would be extremely difficult to distinguish a good faith but differing point of view from profit based advocacy.  Likewise, prosecutions of contributors perceived to be biased (rightly or wrongly) despite their affidavits would drive from making any comment those who could not rely upon well-financed legal teams to come to their defense.

Would there not be a substantial danger that the battle of well-financed parties in interest is merely shifted from the Courtroom after the patent is granted to the examiner’s office before the grant?  If the examiner is now overworked, will not the fog of patent war resulting from too much information likewise gum up the process, and perhaps much more?

If we are going to require affidavits of no conflict of interest, set up elaborate structures and weed out processes to eliminate those who try to pervert the process for financial gain (i.e. have a competing patent denied, do harm to a competitor’s company, etc.) why is it not much more efficient just to hire more competent examiners and to expand the time they have to examine the patent and the resources which they have available?  In the end, it seems that trying to correct the flaws of the current system within its existing structure may be a much easier task.

The copyright of the cartoon character Popeye expired earlier this year in Europe.

At the beginning of this year, the copyright of the cartoon character Popeye expired in Europe.  However, the company King Features still owns the trademark, and intends to “protect its brand aggressively.”  Now, imagine that you are a European producer of canned spinach.  With Popeye in the public domain, you wish to include an image of Popeye on the label of your product.  However, King Features challenges your label as an infringement on their trademark by claiming “likelihood of confusion” and “trademark dilution.”  Even though Popeye now is in the public domain, can King Features contest your use of Popeye as an infringement of their trademark?  If trademark can be invoked in this way, then how is trademark not just an extension of copyright?

The US Patent and Trademark Office describes the differences between copyright and trademark as follows: copyright “protect[s] works of authorship, such as writings, music, and works of art that have been tangibly expressed”, and trademark “protect[s] words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.”  So sometimes copyright and trademark can overlap in the types of works they protect—the image of Popeye, for instance, is copyrighted as a “work of art” and trademarked as a “symbol” for King Features.   However, copyright and trademark were established for very different reasons.  The purpose of copyright is to incentivize the production of creative and artistic works, while the purposes of trademark are “to aid the consumer in differentiating among competing products,” and “to protect the producer’s investment in reputation.”  But the most significant distinction between copyright and trademark is the difference in their durations.  Copyright (typically) expires after 70 years plus the life of the author, while trademark can be renewed indefinitely without limit.  The unrestricted duration of trademark makes it more attractive and powerful in protecting works than copyright.

In theory, the distinctions between copyright and trademark seem clear, but in practice, it is difficult to predict how a court will treat one compared to the other.  Intellectual property specialist Mark Owen explains “the Segar drawings are out of copyright, so anyone could put those on T-shirts, posters and cards and create a thriving business.  If you sold a Popeye toy or Popeye spinach can, you could be infringing the trademark.”  The distinction between these two uses—that is, Popeye on a T-shirt rather than on a can of spinach—is not obvious.  For the canned spinach example, it seems unlikely that a claim of “likelihood of confusion” would hold up in court, because King Features is in the business of entertainment as opposed to produce.  A claim of “trademark dilution” seems more believable because the image of Popeye is extensively “famous” that putting him on a can of spinach might result in brand “blurring” or “tarnishing” side effects.  However, I question whether the trademark of Popeye is valid in the first place, because how well do people actually associate King Features with the image of Popeye?  We will not know for sure whether the public domain Popeye or the trademark Popeye will prevail over the other until a court makes a ruling.

The case of Popeye reflects a troubling trend in intellectual property: companies invoking trademark as an unlimited extension of copyright.  The law clearly defines the purposes and extents of copyright and trademark, so it is unsettling to see when these intents are not followed through in practice.  As the first prominent cartoon character to enter the public domain, Popeye will set an important precedent for when his copyright expires in the US in 2024, and for other substantial characters such as Mickey Mouse, who (barring any further successful lobbying by Disney to extend the duration of copyright) is due enter the US public domain in 2023.