Patent-busting wiz Greg Aharonian's patent newsletter has included some scathing comments on the array of current legislative and academic proposals for patent reform. The crux of the matter is the failure of the legislation to address or even recognize internal patent office management woes (which are nightmarish indeed).

Reading these critiques started me wondering, WHY? Assuming the reformers are well-intentioned and reasonably competent, why would they fail to address a glaring problem? ...

Why tinker with external institutions and rules (post-grant oppositions, for example) if what is really needed is internal reform?

The answer lies somewhere in American or perhaps more generally "Western" ideas of government. Governance problems are often addressed by setting institutions against external forces, even one another (thus the legislative, executive, and judicial branches, checks and balances, and so on). The hope? assumption? theory? is that external accountability will "trickle down" and force internal competence. Hey, it works in markets. Companies that don't respond to what consumers want lose out, and ultimately must change their ways or fail (thus explaining the desire of some reformers to outsource some PO functions).

The problem is, forcing managerial competence through accountability to external forces just doesn't work well for administrative agencies. It has a prospect of working for the legislative and executive branch, they can lose elections. It works pretty well for the military, even--incompetent management in the military will get their own people killed. But in agencies and bureaus? Case in point: the FCC has been overruled on a number of occasions by the courts, but has never embraced any momentous internal reform--there's zero impact from being overruled on the Commissioners. They may be disappointed, but they don't lose their jobs. Often, an agency's failure becomes an occasion for an increase in budget.

Bottom line: It will be very hard to bring Patent Office management woes to an end by reforms that increase external pressures alone, unless those pressures become very real penalties for failure. So I agree with GA.

But not entirely. Because it would be equally hard to bring Patent Office management woes to an end by internal measures alone. There's a reason that things have gotten so bad there. It's not just lack of funds. There is a lack of real accountability for failure that affects PO managers at an individual level, and until that reason is addressed, there's no real solution. And no one yet that I know of has ever unbureaucratized a bureaucracy without practically abolishing it, like the Interstate Commerce Commission.

Bottom line: Patent Office reform is going to be tough going.

posted by Solveig Singleton @ 9:08 AM | Patents

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