According to the abstract, "Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform as it has during the passage and now implementation of the landmark Leahy-Smith America Invents Act of 2011."
Fundamentally this is an articles designed to show that software patents aren't handled any differently at USPTO than other patents. The authors select a group of patent classifications to define software patents and use the behavior of the patents in comparison with other non-software patents to illustrate that the USPTO outcomes are similar.
(We could make the argument that if we shifted the Classes included in the paper here and there, that the outcome might be different. It is also curious that after the big build up to the new Cooperative Patent Classification (CPC) system by USPTO, that the authors didn't elect to use the new classifications in their article. But we digress.)
But there is something very curious here. Who are the authors?
The articles bibliographic information about the authors says,
"Stuart J. H. Graham is an Expert Advisor to the US Patent and Trademark Office. He is an Assistant Professor, Scheller College of Busines, Georgia Institute of Technology, Atlanta, Georgia and is an attorney licensed in the State of New York. Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office. He is an Adjunct Professor at the Norther Virginia Community College, Alexandria, Virginia and is licensed in the State of Illinois."
Expert Advisors to the USPTO and academics. Well, not quite.
Stuart Graham is the Chief Economist at USPTO. Or as noted on the USPTO website, "The USPTO established the Office of the Chief Economist (OCE) in March 2010, with the appointment of Dr. Stuart Graham as its first Chief Economist. The Chief Economist is responsible for advising the Under Secretary and the Administrator for External Affairs on the economic implications of policies and programs affecting the United States intellectual property system. The Chief Economist initiates and oversees groundbreaking economic analysis in the field on the topics of intellectual property protection and enforcement, with the object of fulfilling the USPTO’s statutory obligation to provide the President (through the Secretary of Commerce) and the Administration with advice on intellectual property policy." Dr. Graham has a considerable research agenda at USPTO and is the public fact of many of the Office's outreach efforts including encouraging colleagues in the patent research world to comment on issues like the impact of the lack of transparency on patent assignees and the real person of interest in patent litigation.
Mr. Vishnubhakat, another Expert Advisor at USPTO, works in the Office of the Chief Economist. He works for Mr. Graham. According to public, "Saurabh Vishnubhakat advises the USPTO's Chief Economist and senior management on a range of issues including genetic patenting, IP assignment, international trademark examination, and technology standards. ...As part of the USPTO's implementation team for the Leahy-Smith America Invents Act, Saurabh helps administer a number of regulatory reforms, studies, and reports to Congress."
Mr. Vishnubhakat was an active participant in USPTO's efforts to deal with the problems associated with hiding the real interests in patents and perhaps more importantly, patent litigation and the Roundtable on Proposed Requirements for Real-Party-in-Interest Information Throughout Application Pendency and Patent Term published in the Federal Register. USPTO sought comments on means for collecting and dissemination information about who the real owner of the patent applications and patents and how the USPTO what USPTO can do to collect more timely and accurate patent assignment information during patent prosecution and during it's term. He was the conduit through which organizations submitted comments to USPTO. (Here's an example.)
So what's going on here? Mr. Graham and Mr. Vishnubhakat both work for USPTO. Neither is simply an Expert Advisor doing some work at USPTO as a break from academia. Both are active participants in research and analysis and are directly involved in policy strategy and formulation and the implementation of the new Leahy-Smith America Invents Act. Why didn't the bios on the article reflect that? Why did the editor of the Journal of Economic Perspectives not require a more accurate bio?
So the guys at USPTO who are working on seeking input on changing the rules of the game with respect to hiding the real-person-in-interest in patents are obfuscating their relationship with USPTO in academic articles.
Obfuscation must be contagious in the patentsphere. A little transparency might be in order here.
(Oh - and the whole cotton gin, sewing machine, laser discussion gets a little hackneyed when you consider that the level of complexity in the patent system hadn't reached today's breathtaking complexity when these inventors were duking it out. Just look at the size of the footnote needed to define the universe of software patents.)
Update - 4:47pm
This afternoon we reached out to the Editor of the Journal of Economic Perspectives (JEP) on their editorial policy with respect to the biographical information of their contributors.
Ms. Ann Norman Assistant Editor, JEP relayed the following, "Stuart Graham was Chief Economist at USPTO and now is an Expert Advisor. That status changed only at the last minute, apparently, at the last stages of preparing to send this paper for printing…
"So the authors did disclose their potential conflicts of interest to us, and it was/is an editorial decision as to whether these conflicts were significant enough to post online. We can, in-fact still post the full disclosure statements with the paper, though of course it is too late to mention in the paper itself that the online disclosure statement exists."
Ms. Norman graciously provided the full disclosures statements for both each author which confirm the status change.
We appreciate the timely response to our inquiry. We still believe it is important to the readers of articles about patents that the affiliations of the authors are known. We believe information transparency is an important element in fixing the perception that the patent system is broken. We don't believe it's broke we believe that the system needs more transparency.
