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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 18 / 39

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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

143.

U.S.

Patent

&

Trademark

Office,

Patent

Examiner

Training,

http://www.uspto.gov/web/offices/com/annual/2005/0602_patexamtrain.html visited Nov. 1, 2006).

(last

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

topic). visited

Am. Nov.

1, 2006). As evidence of “researchers” are indicated as

the mutual an intended

incomprehensibility audience of Physical

of these journals, Review Focus. Am.

Physical

Soc’y,

About

Focus,

http://focus.aps.org/about.html

(last

visited

Nov.

1,

  • 2006)

    .

    • 145.

      See discussion infra Part V.B.

    • 146.

      Russell E. Levine et al., Ex Parte Patent Practice and the Rights of Third

Parties, 45 AM. U. L. REV. 1987, 1989 (1996).

1999

147.

The Domestic Publication of Foreign Filed Patent Applications Act

requires

patent

applications

to

be

published

eighteen

months

after

the

date

of of

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

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