WACKY inventions are a mainstay of American culture: self-tipping hats, refrigerated running shoes, leashes for canaries, to name just a few.
Even so, five-year-old Steven Olson raised eyebrows last month when he patented a new way to swing on a swing.
Steven -- or rather his father, Peter Lowell Olson, who happens to be a registered patent attorney in St. Paul, Minn. -- claimed that his ''invention'' was to alternately pull on the chains of a swing so that it swings side to side rather than forward and backward.
Mr. Olson has said he applied for the patent only to teach his son how the inventor's process works. The Olsons, he said, have no plans to patrol playgrounds seeking royalty payments on their U.S. patent 6,368,227.
Continue reading the main storyBut the swing patent has once again raised the seemingly perennial fear that something is terribly wrong at the Patent Office.
These days even James E. Rogan, who became the director of the agency in December, is making ominous predictions. In a February cover letter to the budget outline for 2003, he suggested his agency is so backlogged that unless fundamental changes are made, inventors soon may have to wait more than three years to be issued a patent. Even now investors and patent laywers consider the current average wait, a little more than two years, much too long.
The patent office plans to hire 688 patent examiners this year. About 500 of them have already been brought aboard, bringing the current corps to 3,300. If the Patent Office gets the 20 percent budget increase it has requested from Congress, an additional 1,000 examiners would be hired next year.
Why the big demand for examiners? First, employee churn has been a chronic problem for the agency, whose salaries are often not competitive with the private sector. Moreover, even while the economy ebbed, patent applications continued to rush in.
''The volume of patent applications has gone up substantially, and also the complexity of patents has increased,'' said James Malackowski, president of the Licensing Executives Society, a professional organization, and a contributor to ''From Ideas to Assets,'' a new book on intellectual property.
But others suggest something else may be afoot aside from personnel shortages. Several law-journal articles in recent years have suggested that the threshold of what is patentable has fallen significantly in the decades since 1952, when Congress changed the definition of what is patentable. Before that, an invention was supposed to exhibit a ''flash of genius.'' Since then, an invention must merely be ''nonobvious.''
Although statistical evidence is hard to come by, the definition of what is nonobvious may be seriously eroding. Cecil Quillen, a senior adviser with Cornerstone Research, published an article last year in the Federal Circuit Bar Journal showing that more than 90 percent of all patent applications eventually became patents, suggesting that, with a little perseverance, a person can patent just about anything.
''Historically, the Patent Office has always faced challenges having to do with new technologies,'' said Josh Lerner, a professor at the Harvard Business School. ''But then things equilibrate and reach a steady state. What is new and different is that the pressures on the Patent Office today are much greater than in the past.''
Kien T. Nguyen, the examiner in charge of the Steven Olson swing patent, appears to be an experienced examiner who since 1996 has issued hundreds of patents, many of them covering different types of swings. Did Mr. Nguyen, in the case of the Olson patent, merely apply an overly expansive definition of what is patentable? Or was he simply so overworked he let an absurd application slip by?
Brigid Quinn, a Patent Office spokeswoman, said she could not comment on individual patents, but did say that the patent was under review.
According to Ms. Quinn, the agency is undergoing a top-to-bottom review. ''It's a new day,'' she said. ''Quality is of utmost importance to the director. At this point, everything is on the table.''
Early this month, when he was addressing the Licensing Executives Society at their annual meeting, Mr. Rogan -- who was a Republican Congressman from southern California before becoming director of the Patent Office -- suggested new approaches. The proposals included contracting out some work and possibly creating a two-tier patent system, with some patents undergoing rigorous review and others merely being registered much as trademarks or copyrights are.
Gregory Aharonian, publisher of the Internet Patent News Service, an online newsletter, and a longtime critic of the agency, is less than sanguine about reform. He cites a 1943 report from a National Commission on Patents. ''It was asking, 'How good are these patents, does anyone know?' '' Mr. Aharonian said. ''The same questions are being asked 60 years later. I mean, has this field made any progress?''
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