WISCONSIN LAW REVIEW
For one thing, the problem of inadequate technological training may be less severe than it appears, since examiners are expected to increase their understanding of a chosen field after many years of exposure to patent applications.143 More importantly, even if the USPTO recruited only doctoral graduates, which would certainly involve significant costs, the concern of inadequate training would likely persist. For example, the field of physics is so specialized that practitioners of one subfield will often find the scholarly articles of another subfield virtually unintelligible.144 A solution to this problem is likely to involve not only more technological sophistication from examiners, but outside help as well. 145
B. Reexamination Makes Inoperability Rejections Difficult
If the USPTO is approving patents for inoperable inventions, then one possible solution is to have the USPTO reexamine allegedly inoperable patents after they are issued. The patent application process is an inherently ex parte procedure with no input besides that of the applicant and a presumably disinterested examiner.146 Thus, neither interested investors with possible prior art claims nor consumers are allowed to state their objections until after the patent has been issued. 147
http://www.uspto.gov/web/offices/com/annual/2005/0602_patexamtrain.html visited Nov. 1, 2006).
144. The premier academic journal in physics is The Physical Review, which is divided into ten separate publications: Physical Review Letters (selected articles from every subfield), Physical Review A (atomic, molecular and optical, physics), Physical Review B (condensed matter and materials physics), Physical Review C (nuclear physics), Physical Review D (particles, fields, gravitation, and cosmology), Physical Review E (statistical, nonlinear, and soft matter physics), Physical Review Special Topics: Accelerators and Beams, Physical Review Special Topics: Physics Education Research, Physical Review Focus (selected articles explained at a more elementary
level), and Review of Modern Physics Physical Soc’y, Physical Review Online
(survey articles about a particular Archive, http://prola.aps.org (last
1, 2006). As evidence of “researchers” are indicated as
the mutual an intended
incomprehensibility audience of Physical
of these journals, Review Focus. Am.
See discussion infra Part V.B.
Russell E. Levine et al., Ex Parte Patent Practice and the Rights of Third
Parties, 45 AM. U. L. REV. 1987, 1989 (1996).
The Domestic Publication of Foreign Filed Patent Applications Act
filing, even if the application process is not yet completed. Pub. L. No. 106-113, § 4502, 113 Stat. 1501A-561 (codified at 35 U.S.C. § 122(b)(I)(A) (2000)). The law was a response to the problem of submarine patents. See Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 BUFF. L. REV. 63, 80 (2004). Even