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Getting a patent in the U.S. isn't supposed to be this tough. Once you file an application, you're supposed to receive your patent--or get a rejection--within 18 months.

Unfortunately, the average wait is almost twice as long: 31.3 months. That means patent applicants are left in legal limbo for, on average, more than two and a half years before they discover what legal rights they will receive for their inventions.

"Most of these petty patents are struck down when contested," says Stephen Kunin, a patent attorney with Oblon, Spivak, McClelland, Maier & Neustadt. "Because these patents don't get a full examination at the patent office, they don't have full vitality."

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Critics, however, allege that platinum-plated patents would undermine the strength of ordinary examination patents. "The PTO wants to establish a higher-level patent and say this is a really good patent, but what does that say about other patents?" Helfgott notes. "Are they not good patents?"

Moreover, this type of patent would create more work for the PTO at a time when the agency is already swamped. "[I]t diverts the USPTO's very limited resources into a few extra cases where applicants are willing to pay high costs," Wamsley says.


Steven Seidenberg

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