43.5-month patent process not moving fast enough


Three years ago, Jill A. Stelfox filed three applications with the U.S. Patent and Trademark Office. One was granted six months ago. Two are still pending.

For some industries, that time frame might not be so bad, but in Stelfox's world of wireless technology, it's rotten. "Technology changes too quickly," said Stelfox, who in 2003 co-founded a Herndon, Va., company called Defywire Inc., which creates mobile tracking and information transmission systems. "There's got to be a way to speed up the process."

It takes an average of more than three years - 43.5 months, to be exact - for the government to process a software patent application. And though the protection granted lasts for 20 years, most tech products have a much shorter shelf life.

For many, by the time the application is processed their "software is likely to be obsolete," said Lawrence M. Sung, director of the intellectual property law program at the University of Maryland law school.

Over the past two decades, the number of patent applications has tripled. Meanwhile, the rules keep changing on what can be patented, from intellectual property claims on everything from living organisms like bacteria to one-click online shopping. The increase has led to a backlog of 885,000 applications and the fear that some patents, despite the time frame, are being granted without proper review.

The technology industry, particularly its larger members in the software sector, has been lobbying for patent reforms for years to curtail what it calls "excessive and abusive litigation." The cost of patent litigation now averages about $2 million per case unless the damages at stake exceed $25 million, in which case court costs double, the American Intellectual Property Law Association says.

"The U.S. patent system has not kept pace with the tremendous changes in our world. Patents are intended to encourage innovation, but our broken patent system and the rise in patent litigation have instead thwarted innovation," the Information Technology Industry Council, a trade group, said last year.

Organizations such as the Business Software Alliance have lobbied Congress to roll back the rights of patent holders and make it easier for competitors to enter the marketplace.

"Ever since the patent system was enacted over 200 years ago, the debate over free competition versus patent monopoly has raged," said Royal W. Craig, a Baltimore-based patent attorney.

Stelfox's first patent covers technology that allows multiple pieces of information to be delivered to a device at the same time - a key component to Defywire's products. Her company creates products meant to securely deliver information to soldiers at war, help transportation firms keep tabs on their fleets and send e-mail to mobile devices. One of the company's most popular systems helps parents keep tabs on their children through tracking systems installed on school buses that can send text messages and store medical information.

Stelfox said her inspiration came after the attacks of Sept. 11. She couldn't reach anyone at her former company's New York offices that day, but she was able to receive an e-mail from FedEx saying a package she had sent to the city had arrived.

The patent that provides her products exclusivity are crucial to her success, so she's not sold on some of the larger technology companies' attempts to weaken patent protection.

She wouldn't mind an end to some of the litigation, however. She recently settled a lawsuit filed against a company said to have stolen Defywire's technology.

"I'm definitely for keeping patents strong," Stelfox said. "It increases the value of our company."


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