Chuck Talk was pleased to be able to interview Dan Ravicher, Executive Director for the Public Patent Foundation. What follows is their conversation. Chuck hopes you find this as enlightening and inspiring as he did. It is good to know that the spirit of the Public Trust and Interest is not lost in America.
(Submitted by Chuck Talk Mon May 10, 2004 )
| ||Chuck Talk: Who is the Public Patent Foundation, and do you have public funds for support?
Dan Ravicher: PUBPAT is a New York not-for-profit corporation that is publicly supported, both through a foundation grant and private donations.
Chuck Talk: What is the prime mission of the Public Patent Foundation?
Dan Ravicher: PUBPAT's mission is to protect the public from the harms caused by the patent system, primarily the harms caused by wrongly issued patents and unsound patent policies.
Chuck Talk: I have been reading from several sources that the USPTO is simply understaffed and over-burdened. Do you think that affects the quality of the patents granted in any way?
Dan Ravicher: I take considerable issue with the PTO's claim that it needs more staff and funding, because its problems are largely of its own doing. The PTO purposefully implements rules and procedures that encourage patronage, because their revenue is derived directly from patronage (i.e., application fees). If the PTO did not eventually issue patents on roughly 90% of all applications, which they do now, I doubt they would be so burdened with applications.
I also fear that the PTO, if given more staff, will not use them to increase patent quality, but rather will use the new staff to increase productivity so that they can clear out their backlog and, thus, encourage the filing of more applications. I have grave reservations about the PTO's ability to meaningfully improve patent quality so long as
(1) they continue to have economic and political incentives to be favorable to applicants and
(2) they are not forced to be accountable for issuing bad patents.
If you read closely the press about this issue, the PTO is quite schizophrenic. On the one hand, they will say that they do not have enough money to do their job adequately and that their agency is in crisis. Yet, when criticized for failing to do their job adequately, they quickly jump to defend themselves by saying that they do a great job and patent quality is not an issue. I
understand the pressures and limitations placed on the PTO, but I do not understand their inability to be consistent.
Chuck Talk: Some of the people who I converse with in the industry believe that the patent process has become absurd in many ways simply due to the rather obvious nature of some patents. Does the Public Patent Foundation intend to primarily defend against obvious patents, or is it intended to keep public domain information from being patented?
Dan Ravicher: Patent law states that everything known and everything obvious in light of what's known is public domain information, which cannot be patented. Therefore, proving patents are invalid for obviousness is a substantial way to prevent the public domain from being recaptured in a new patent.
Chuck Talk: What improvements might PUBPAT suggest in the patent process? What one suggestion would you like to make to the USPTO or the U.S. Congress to try to right the course of the USPTO?
Dan Ravicher: Patents issued today come with a mighty presumption of validity that is difficult to overcome. This is despite the fact that scholarly empirical analysis sheds serious doubt on such presumption. The presumption is even more unjustifiable when one recognizes that the PTO has adopted its own presumption that all patent applications deserve to be issued. So, what we have is a patent system that at no point puts a burden on the patent holder to prove they've invented something. The burden is always on another party, be it the PTO or a defendant in court, to prove they did not. As such, my one suggestion would be to eliminate the presumption of validity.
Chuck Talk: I know that PUBPAT is going to fight the Microsoft FAT patent, but are there are such patents that PUBPAT intends to review, or will PUBPAT work more for resolving the root of the problem at the USPTO?
Dan Ravicher: PUBPAT's activities are purposefully varied in scope in order to comprehensively protect the public from the harms of the patent system. Our reexamination and client representation efforts are aimed at specific cases where identified patents are causing harm. Our advocacy and education efforts are aimed at changing the patent system so that it no longer causes or provides a mechanism for such harms to occur.
However, the root of the problem is not just at the PTO. Although it is responsible for a large portion of the patent system's failures, it is not the only party to blame. Congress, the courts, the patent bar and patent holders and applicants all share responsibility for perpetuating the harms of the patent system. The problem is that all the players point fingers at each other, rather than themselves.
Chuck Talk: Does PUBPAT intend on reviewing patents in areas outside of software and technology?
Dan Ravicher: Yes, we've already challenged a patent on cotransformation, a process for inserting foreign DNA into a host cell to produce certain proteins. The process is a basis for a large portion of the biotech industry we know today and is used to produce such drugs as Epogen ® for anemia, Activase ® for heart attacks and stroke, Avonex ® for multiple sclerosis, and Recombinate ® for hemophilia. We also have an active matter involving the protease inhibitor, ritonavir, which is a critical part of today's most successful AIDS treatment regimen.
Chuck Talk: One of my non-profit ideas was for a Corporation for Public Software to build reliable public interoperable infrastructure software. Although my original proposal was to build open-source voting software machines, I found the hurdles for finding grant money very difficult. Many people lauded the idea, but had no funding to pass on for such a project. What advice could you give to someone who wanted to find funding for a non-profit to better society?
Dan Ravicher: There aren't many sources for angel social venture financing. The Echoing Green Foundation is PUBPAT's angel, and they are about the only organization I know of that actively and solely funds new social ventures. Other than that, building a personal relationship with someone or some entity that may want to support your mission would be the only other way I can think of to find an angel. One can also try looking for established organizations that might be interested in starting a program to house your project. Since they're already established, and since there's really no benefit to keeping your activities separate (like there would be if it were a for-profit business), there's nothing to lose from free riding on the institution building that they've already done.
Chuck Talk: Finally, is there anything that you would like to tell my audience?
Dan Ravicher: PUBPAT looks forward to helping the public understand and protect itself from the harms caused by the patent system. Thank you.
Chuck Talk: Thanks Dan, for your time, and for your important work. The Public at large gains from organizations such as yours that take the effort to take the Public Interest to heart. I can only hope that someday, I too can contribute back to society. I do believe there is a wealth of people that have the public spirit at heart. Your story is an inspiration to me, and I hope to others as well.