Nearly six years ago, Dan Bogard, an Austin, Texas, inventor, applied for a U.S. patent on a process for transmitting digital data.
Behind the mind-numbing description found in Bogard’s patent application was a simple goal: improving the way consumer products like MP3 players, cell phones and cassette recorders work.
But while a semiconductor chip can perform a calculation in a billionth of a second, applications for patents in America move a lot slower.
It was more than five years before the U.S. Patent and Trademark Office got around to ruling on Bogard’s patent, which was approved in February.
During those years, the idea languished in a backlog of applications that hangs over the patent office like a dark cloud that gets bigger every year.
At a time when intellectual property is seen as a big part of the country’s economic lifeblood, the patent system is operating like a clogged artery.
Although official statistics haven’t been published, it is clear that the number of applications waiting for an initial decision by the agency’s corps of increasingly overworked examiners will top 1 million this year for the first time in history.
"It’s a huge problem," said Ronald Edgerton, chief executive officer of SigMatel Inc., the Austin semiconductor manufacturer for whom Bogard worked and which owns his U.S. patent, No. 6999584.
"In the high-tech industry, many inventions have a life span of only two or three years," Edgerton said. "At least that’s when they’re most effective, because technology moves on."
If patents don’t get issued until the value of the technology they represent has started to wane, "then the whole process has been undermined," he said.
"The sheer volume of applications threatens to overwhelm the patent examination corps, degrading the quality of their work or creating a huge backlog of pending cases or both," the National Academy of Sciences warned two years ago.
The National Academy of Public Administration, in a report released last year, noted a dramatic increase in "first action pendency," the time between the day an inventor applies for a patent and the day an examiner makes his or her first preliminary decision about whether to issue a patent.
In 1993, first action pendency averaged 7.6 months. The average rose to 13.6 months in 2000, and was 20.2 months last year. In some areas, such as communications, pendency is running more than 30
The problem is felt most keenly in America’s high-tech cities, places like Austin, which along with California centers such as San Jose, San Diego and Palo Alto, regularly dominates the patent office’s list of new patents.
In the most recent weekly edition of the U.S. Patent Official Gazette, Austin inventors were awarded 40 patents. Only San Diego and San Jose, with 43 and 104, respectively, had more.
"We would be in a better position" if patent applications were approved more quickly, said Edgerton. "We could grow our company faster and we would have the financial wherewithal to hire more people and to go into new markets."
Delays also impose a heavy tax on small companies and individual inventors, said Marc Ehrlich, a lawyer for IBM Corp., which for 13 consecutive years has obtained more patents than any other U.S. company.
"To the guy who’s got one or two inventions, it’s a big deal," Ehrlich said. "For him, it’s the whole ball of wax."
The uncertainty inhibits needed capital and licensing agreements and "chills people from going out and innovating," he said.
IBM’s Austin operation accounts for more patents than any other in the company’s worldwide network of research and development centers, said spokesman Lon Levitan.
Under President Bush, the patent and trademark office has been hiring new examiners at the rate of more than 1,000 a year, a process the patent office has pledged to continue for the next five years.
But the facts of increasingly harsh production quotas and that patent examiners are among the best-educated and most mobile employees of the federal government combine to create a five-year turnover rate of about 50 percent.
"It’s a sweatshop over there," said Ronald J. Stern, who retired last year as an examiner and president of the Patent Office Professional Association, the union that represents most of the agency’s 4,500 examiners.
Robert Budens, the union’s current president, said parking areas near the agency’s Alexandria, Va., office remain full late at night every three months as examiners labor to meet production quotas that are critical to their employment status.
Both the National Academy of Sciences and the Academy of Public Administration noted that no one has proven the popular belief that the backlog has led to poorer-quality patents.
In fact, the academy of sciences report specifically stated that "continuing high rates of innovation suggest that the patent system is working well and does not require fundamental change."
Still, several widely publicized "junk patents," such as one issued in 2002 to a 5-year-old Minnesota boy for a method of swinging in a swing — "the user may choose to produce a Tarzan-type yell while swinging in the manner described," the application reads — have fed the popular belief that patent quality is suffering.
Without citing specific evidence, Fortune Magazine recently described "an epidemic of shoddy patents."