So what are the US Presidential Candidates saying about patents? Well the fact that they are talking about patents at all is rather remarkable and shows just how dysfunctional the US patent system has become. Below are excerpts from the technology plans of both candidates, taken directly from their respective websites.

Both candidates talk about bad patents stifling innovation, which is sadly true for many reasons, not the least being the fact that patent trolls are dragging everyone into court in the Eastern District of Texas seeking windfall payments on suspect patents. I am not a fan of the term “patent troll,” not because I don’t realize there are bad actors, but because we need to be careful about how we define unwanted patent activity so that it does not negatively impact Universities and Research & Development start-up companies. While large business would like the term patent troll to relate to all non-practicing entities, the truth is that the hatred for patent trolls should be rightly directed to those who acquire bad patents and then seek to hold corporations up in court hiding behind the presumption of validity, contingency fee patent litigators and a huge treasure chest of funds available to harass. Neither candidate seems to be making this distinction, but that is not surprising really given the greater issues to be discussed in this election cycle.

If you look at what John McCain has said about patents you do see a more thoughtful position that seems to be informed based on the realities of the US patent system. For example, John McCain says that he would increase resources for the United States Patent Office, which is a good thing. His position also suggests that he understands that hiring alone is not going to provide the solution, but there needs to be better training of examiners and predictability of results. How can this not be music to your ears if you are a patent attorney, inventor, venture capital group or corporation heavily invested in protecting innovation?

John McCain also says that he will appoint individuals with experience with science, innovation and technology. If this actually happens within the Patent Office a lot of the problems that have plagued the system for years will be reversed and hopefully erased in time. Of course, erasing the problems we now face is not something that we can expect given the crisis that will be turned over to the next Director of the Patent Office, but first we need to stop making bad decisions and build toward success, which will in time hopefully reverse the downward spiral of the US patent system.

Barack Obama also has ideas it seems, but much of his treatment of the patent crisis is devoted to creating a “gold plated” patent that seems to be derived from public peer review. This undoubtedly picks up on the ongoing peer review project at the USPTO with respect to computer related inventions, particularly software inventions. The trouble with this approach is that it is not really working very well. Although the Patent Office recently suggested that the pilot program is working wonderfully, the USPTO acknowledged that about one-third of examiners have used peer supplied prior art in the first action on the merits and that so far only 31 applications have been examined under the pilot project which started over 12 months ago. The truth is that examinations are better when better prior art is located, but it seems to me that a peer system is just the wrong way to go about this. Rather than create a functioning system the work that is supposed to be done by the Patent Office is being off-loaded on society. It seems that a peer system creates a huge bureaucracy with marginal benefit, particularly given that there are much better, easier and more cost effective ways to address the problem.

It just seems so typically characteristic of government to identify a problem that can be easily fixed and then horribly complicating things to the point where so much is being done to create so little benefit. All you have to do here is tweak the protest rules, not create a peer review system! And does anyone really believe that tweaking the protest rules (which should be done) or the more complicated Peer-to-Patent Project will solve the problems facing the Patent Office? Seems to me like trying to bail water from a sinking boat using a bathroom cup!

Anyway… here is what the candidates are saying so you can decide for yourself.

John McCain (excerpts from McCain Technology Plan)

The increased workload at the United States Patent and Trademark Office threatens to undermine the quality of our patent examinations. New resources to hire and train quality examiners are needed to ensure timely, predictable and effective patent review.

Intellectual property protection is increasingly an issue for U.S. innovators operating in the global economy. John McCain will seek international agreements and enforcement efforts that ensure fair rewards to intellectual property.

For many important technologies, the only effective way to challenge a patent in the United States is through litigation, but litigation on patents is much too expensive. The lack of an affordable, reliable means to ensure that the Government only grants valid patents has led to overly broad, frivolous lawsuits designed to force innovative companies into big settlements.

As President, John McCain will be committed to bringing talented men and women of science into the federal government. He will strive to ensure that Administration appointees across the government have adequate experience and understanding of science, technology and innovation in order to better serve the American people.

Barack Obama (excerpt from Technology and Innovation for a New Generation)

A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a “gold-plated” patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.