![[IPWatchdog Logo]](https://ipwatchdog.com/wp-content/themes/IPWatchdog%20-%202023/assets/images/temp/logo-small@2x.png){kind=logo}
26 
When a utility patent is issued by the United States Patent and Trademark Office the identifying number has 7 digits, which has been the case since U.S. Patent No. 1,000,000 was issued on August 8, 1911.
At some point in time in the not too distant future the USPTO will grant U.S. Patent No. 10,000,000. That’s a nice round number, but we just crossed the nine million threshold with the issuance of U.S. Patent No. 9,000,000 on April 7, 2015. Over the next several weeks the USPTO will award U.S. Patent 9,200,000, which will occur just less than 8 months after U.S. Patent No. 9,000,000 was awarded. At this pace the ten million threshold will come sometime in June 2018.
Why even think about U.S. Patent No. 10,000,000 at this time? The simple answer is because it will add one more digit – an eighth digit – to utility patent numbers. Since the dawn of the computer age, computer systems have handled only 7 digit patent numbers. Without deliberate consideration and action moving to an eighth digit may not be as smooth a transition as you may want to believe.
Some readers will undoubtedly remember the last few years of the 20th century when a massive effort was undertaken to upgrade very old software code, written in Cobol if you can believe it, so that software systems would properly function when we changed over from ’99 to ’00. The forty years of computing using 2 digit years came to an end. There was no catastrophe, so the temptation may be to say “so what”? But those who lived through these efforts know it took a Herculean effort to avert what could have been a real disaster.
A similar issue to the millennial software crisis exists now for the U.S. patent system. We need to extend the 7 digit US patent number to 8 digits, and there is not a lot of time to do it in a way that will minimize impact and maximize the likelihood of a smooth transition. After all, despite what the Supreme Court may think to the contrary, software does not write itself and you actually can’t write reliable, useful, bug-free code over a weekend – no matter how much coffee you drink.
Obviously, adding an eighth digit to U.S. utility patent numbers is far narrower than the Y2K challenge. At the same time, a large number of USPTO systems could face challenges related to dealing with an extra digit in the patent number. Many, if not all, commercial product providers in the patent marketplace could also have similar challenges. These challenges should be manageable given the time currently available to address them. There is no need for alarm. At the same time, however, ignoring the issue and failing to take remedial steps in advance to ensure a smooth transition would be foolish.
In order to keep the 8th digit issue from becoming a bigger challenge than it needs to be some action does need to be taken soon. Many changes required will only affect the way patent numbers are displayed or printed. They might truncate the first or last digit in some cases or visually corrupt surrounding data in forms. In other cases search results might be affected or listed in unexpected ways. Some software might even distinguish between US application numbers (currently 8 digits) and patent numbers (currently 7 digits) based on length.
A potential larger concern exists for the USPTO. The USPTO computer system is widely known to be extremely fragile. For example, under the Kappos Administration Google accepted a no-fee contract to scrape data saved only in image files from the USPTO servers, converting the data to usable and readable text files. So fragile was the USPTO system that Google could only scrape data for several hours in the middle of the night due to concerns that additional traffic would cripple the system. Even further, each night Google would encounter numerous errors.
It is difficult to believe, but the USPTO computer systems for a variety of reasons have a long history of being woefully inadequate. Over recent years the monumental task of updating and enhancing the computer systems has been undertaken. The office has made exceptional strides in stabilizing their technology infrastructure, but is the USPTO ready for U.S. Patent No. 10,000,000? Even given the positive steps forward by the IT department at the USPTO, some systems may prove difficult to update without applying considerable time or resources.
Determining the scope of this issue requires attention in the very near future. That determination should reveal the number of systems needing remediation and facilitate planning for how to properly resource the changes required. Commercial IP service or content providers may have the same challenges facing them and they too should begin an analysis.
The USPTO – as this nation’s innovation agency – should get in front of this issue and not be caught off guard by what the future will inevitably bring.
![[Advertisement]](https://ipwatchdog.com/wp-content/uploads/2024/04/Patent-Litigation-Masters-2024-sidebar-early-bird-ends-Apr-21-last-chance-700x500-1.jpg)
![[Advertisement]](https://ipwatchdog.com/wp-content/uploads/2021/12/WEBINAR-336-x-280-px.png)
![[Advertisement]](https://ipwatchdog.com/wp-content/uploads/2021/12/2021-Patent-Practice-on-Demand-recorded-Feb-2021-336-x-280.jpg)
![[Advertisement]](https://ipwatchdog.com/wp-content/uploads/2021/12/Ad-4-The-Invent-Patent-System™.png)
Join the Discussion
26 comments so far.
Jim Gould
February 25, 2016 05:36 pmThe big question for someone aged 62, is can I remember 8 digits?
step back
November 19, 2015 08:03 pmAmerican Cowboy @24
There are two kinds of lawyers insofar as SCOTUS as concerned:
1. Them that do the bidding of SCOTUS’s “friends” (amici curie)
2. Them that don’t
Some patent lawyers it seems want the written law to prevail. What nerve. 😉
American Cowboy
November 19, 2015 04:03 pma clever evil draftsman (a.k.a. crafty lawyer)
I am not aware of Scotus thinking this way about lawyers other than patent lawyers. Am I missing a more general trend the Scotus is on, or are patent lawyers being singled out?
How about contracts that are confusing? How about federal regulations that absurd?
step back
November 19, 2015 02:42 pmSteve @21
There is nothing wrong with the Supreme Court saying that one cannot claim a mere idea and instead it must be something new and useful, namely, a new and useful machine, process, manufacture, composition of matter or improvement thereof (using the language of 35 USC 101).
The wheels come off the train however when one does claim a new and useful machine (e.g. a novel computer-based system) and SCOTUS says, with no basis in evidence and no clue of how inventing occurs, woe there horsey, you are trying to be a clever evil draftsman (a.k.a. crafty lawyer) and we are not going to be fooled (even though we are fools). We are going to arbitrarily decide what your claims are “directed” to. We are going to deprive you of a statutorily given right (see 102b opening line –entitled to a patent unless …) by deciding in the first place that indeed all your claims are “directed” to an abstract idea that you fail to claim an unspecified “something significantly more”.
This insane.
And yet there it is in black and white (white rabbit white) in Alice.
Just because they call themselves Supremes does not mean they are.
American Cowboy
November 19, 2015 09:46 amto reply to NIght Rider at 14, if you use lawyers from flyover country, you get a much lower cost. Why spend company money on Manhattan, Chicago or SF lawyers who charge twice as much?
Steve
November 19, 2015 09:42 amA careful read of Alice indicates that the Court interpreted 101 to inherently include unstated exceptions (perhaps based on preceding constitutional interpretations by the Court):
Section 101 of the Patent Act defines the subject matter eligible for patent protection. It provides: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U. S. C. §101.
“We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Association for Molecular Pathology v. Myriad Genetics, Inc., 569
U. S. ___, ___ (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601–602; see also O’Reilly v. Morse, 15 How. 62, 112–120 (1854); Le Roy v. Tatham, 14 How. 156, 174–175 (1853).
Therefore, it may be possible for Congress to remedy this interpretation, for example by altering 101 or another section, to state that a claim shall be interpreted to encompass only patentable subject matter within its scope (rather than both patentable and unpatentable subject matter, and if the later, the claim is invalid). Therefore, if the infringement is “technological” (whatever that really means), then the case can go forward. If the infringement is a merely mental step, plaintiff loses. This could also help avoid issues of trivial infringement–is that good or bad? This, of course, takes much of the issue out of the PTO, unless there is no possible valid interpretation. This also addresses the issue that the PTO forces applicants to add generic hardware to claims, and the Courts then ignore those additions as being generic.
While on the public forum, I ask, if Festo acts as a bar to equivalents for amended claims, why does the BRI not respect these (and other) estoppels in constraining the BRI? Why does the PTO use bad dictionaries, rather than precise, technology specific, ones, but “prohibit” use of Wikipedia, which is better than most sources?
Pat R.
November 19, 2015 09:21 amDid you know that the patent office already issued Pat. No. 10,000,000? It was a “fake” patent listing the dinner menu for an event in 1936 celebrating the 100th anniversary of the founding of the patent office.
Anon
November 19, 2015 08:17 amBenny,
You repeat a fundamental mistake.
An item can (and does) have multiple aspects, each of which aspects may be protected under different intellectual property laws.
Copyright: expression.
Patent: function.
Code is NOT just expression – ergo, not just copyright applies.
Yes, copyright does apply – to the extent of that which copyright protects.
But so does patents.
To say otherwise is, to be perfectly blunt, simply wrong.
Benny
November 19, 2015 03:51 amGene,
Zoobab is not entirely wrong. System designers need to take property rights into account when designing function (when that function is implemented by software), but the code itself is protected by copyright, not patent claims.
– John, some software will parse patent numbers as fixed length character variables, the binary representation is in this case irrelevant. However, as you correctly point out, we can see it coming a mile away. I imagine the USPTO, being a government agency, will be last in line to get their systems ready.
Gene Quinn
November 18, 2015 06:58 pmzoobab-
You are, of course, wrong.
While software programmers think they are special and the laws of business should not apply to them, only someone truly ignorant would believe that software programmers should be allowed to ignore the property rights of others. How completely and totally entitled and clueless you must be.
-Gene
Anon
November 18, 2015 05:24 pmNight Writer @ 13,
You act as if Congress has never corrected the Supreme Court before.
A fundamental mistake that does not go away the more you repeat it.
The substance of my posts very much still apply.
zoobab
November 18, 2015 04:38 pmSoftware Patents are the ultimate insult to the programmer’s profession. It is insane to ask a software developer to look at patent claims before writing code.
Night Writer
November 18, 2015 01:30 pmCowboy: 🙂 Right. Reality: your client gets sued (before IPRs) and you scramble to get all your counter claims in and ring up a bill of over 1 million to your client. All I am saying is that the costs aren’t proportional to the merits of the situation. No reforms I have seen help, but the one about allowing for discovery to be phased to address only current issues.
Night Writer
November 18, 2015 01:01 pmAnon, your issues (which are also ones that I have raised a number of times) go to whether Alice is Constitutional. There is no doubt in my mind that it is not. But, the reality that we all face — right now–is that even if Congress rewrote 101, it would not negate Alice. The Fed. Cir. can still use Alice and would. They would merely say that the new 101 was too broad and needed the Alice cut-out.
That is the reality of the situation. Your issues (which are mine too) are ones that will never be addressed in our life times. And, getting Congress to think about the reality of a new 101 and Alice might bring to a head your issues (and mine) so that maybe I am wrong and Congress would do something about it.
John Willkie
November 18, 2015 01:01 pmOops, for 9,999,999,999 and 10,000,000,000 in the fifth line of my fifth paragraph, substitute 9,999,999 and 10,000,000 respectively.
John Willkie
November 18, 2015 12:58 pmGene;
Your bio says that you have written code in the past, so it’s fair game to treat you as someone who is not merely a lawyer. In that context, this posting makes no sense.
More money was spent on lawyers printing up business cards for their “Y2K” specialties than was lost due to coders early on in the 20th century saving precious memory and disk space by coding years in two digits. Sure, much money was spent later on by these same companies (on programmers) to deal with the inevitable issue of the change of the century. But, most of that issue was related to the simple fact that years, months and days of the month don’t increment monotonically.
Patent numbers, do increase monotonically. The latest patent issued is numbered one greater than the previous patent issued. Comparing the “eighth digit” to the Y2K issue is to engage in orthogonal comparisons.
There are two aspects to this issue: the binary representation of numeric values, and the display (including printing) of numeric values.
Numeric (as opposed to date) values are always represented in binary form, almost always as cardinal “beginning with zero, not 1” values. As an example, the decimal value “15” (‘1111’ binary) can be represented in 4 bits. The decimal value “16” (‘10000’ binary) requires at least 5 digits. I’ll save space and my time and just state conclusorily that the most compact binary representation of 9,999,999,999 decimal requires no more bits than does the representation of 10,000,000,000 decimal. Most computer languages “these days” allocate memory for numeric representation in 16-bit chunks. To represent a decimal value of 16-bit unsigned integers can represent decimal integer values from 0 to 65535. The next range up is 32-bit unsigned integers. 32-bit integer values can represent decimal values from 0 to 4,294,967,296. At the current rate of patent issuance, none of us will be around when the 32-bit number space used to represent patents is exhausted.
On the display front, going from 9999999 to 10000000 does not involve adding an eighth digit, since the preceding values are essentially unreadable to most humans. The issue would be going from 9,999,999 (9 characters) to 10,000,000 (11 characters). For display screens where every character was mapped out, adding the two characters might involve some actual recoding. But then, that’s why programmers are hired.
Anon
November 18, 2015 12:20 pmNight Writer,
Please consider my usual rebuttal to your (still half-baked) views on the Supreme Court somehow with any force of law having rewritten the constitution concerning the allocation of authority/substantive sub-constitutional statutory law.
You have added nothing new, and still have not as yet incorporated my previous comments appropriately.
PS DIP
November 18, 2015 10:30 amWith regard to the 8th digit, there may be problems internally at the USPTO if no changes are made. All patents, be they Design, Reissue, Plant, or Utility must be represented by a seven digit number in the internal systems. This often means utilizing leading zeroes, such as: D002564, Re00100, PP01234, or 0012345.
However, PG-Pubs are accessed and/or pointed to with an eleven digit number on the internal networks, so seven digits does not appear to be a make or break item. Likewise, we could always use an alphabetical character in lieu of the 10 as a short term fix if one was needed. Might be fun to say I have US Patent No. T,000,123 rather than 10,000,123. 🙂
Commercial providers and non-US governmental bodies will have zero issues since they are already used to one to eleven digit numbers representing US patents and patent applications. No leading zeroes needed on their systems…
American Cowboy
November 18, 2015 09:51 amNight writer at 6 says “which in some jurisdictions have to include all the prior art you will be allowed to cite and you may only have a few months to get this done. That means, in effect, your brief –or super version of it–for invalidity has to be written upfront.)”
I don’t see the problem. The defendant knew the patent was invalid, so it was OK to make, use and sell the allegedly infringing goods, so he already had the invalidating prior art in his file. Or am I assuming too much good will?
Night Writer
November 18, 2015 08:30 amOne reform idea for IPRs, if the PTO invalidates your claim based on art that was not asserted in the prosecution, then you automatically get to go back into prosecution and amend your claims. The PTO would then be responsible for matching up art that is cumulative that is filed at the IPR stage with art that was filed in prosecution.
This would fix massive problems and provide a great feedback loop to the PTO. Plus patent attorneys would then be responsible for the claims. The client can say I want claims that are patentable over the cited art and if you do that then you —again–have a solid patent.
Anyway, my two cents.
Night Writer
November 18, 2015 08:28 am(Another comment about reform: the big problem is the unequal costs between the P and D. The P can make the D spend a lot of money upfront while a repetitive P can spend almost nothing upfront. The solution to this is to allow the D more control over the trial. E.g., do most people even understand that aren’t in patent law that upfront you have to give your counterclaims which in some jurisdictions have to include all the prior art you will be allowed to cite and you may only have a few months to get this done. That means, in effect, your brief –or super version of it–for invalidity has to be written upfront.)
That is why IPRs are never going away unless the costs are equaled out at the dist. ct. You see the problem? I can run around with a bad patent (prior to IPRs) and cost you $3,000,000 in the first 3 months and I pay out $50K delta for each complaint.
So, as long as that exists, IPRs are a good idea. The problem is that the PTO needs to get better at searches. The PTO should see it as a failure if prior art is asserted in an IPR that is not asserted in the prosecution and it is not cumulative.
Night Writer
November 18, 2015 08:01 amOne problem with reform of 101 is Alice. No legislation will overthrow Alice. Legislation can only be narrower than Alice. To see this, just ask yourself whether or not the Fed. Cir. can invoke Alice no matter what the Patent Act looks like. And, the answer is yes.
If the Congress understood this, then perhaps they might put on the plate more drastic measures to reform patent law such considering the SCOTUS’s role and the Fed. Cir. role. I think the Fed. Cir. needs to go. The problem is that having a court as specialized as the Fed. Cir. has allowed the big corporation to lobby for anti-patent judges to be appointed–to stack the court in effect. The crop of judges that Obama has appointed are between O’Malley and Stoll pretty much Google appointments.
(I was thinking about Google yesterday as they called me for their Google listings for the 100th time despite me asking them to put me on the do not call list for the 100th time. Consider the price that Google gets for paid search results is very high. That most people don’t get where their monopoly power this the road. It hits the road in the price they get for advertisements. And they have wiped out the print media. What’s happened is people put their money for search results rather than brand advertising. Anyway, Google is making some massive returns on being a monopoly and they are spending some massive bucks in Congress to keep it that way.)
Benny
November 18, 2015 06:44 amGene,
No simple answer. There are numerous software systems that use patent data. For some, it might be a simple matter of changing the size of a variable and prefixing a “0”. For others, it might require a total re-write. Either way, the change involves only the representation of the data, and not its’ manipulation. I’m pretty sure the commercial patent management services will be on the ball because their livelihood depends on it.
Gene Quinn
November 17, 2015 02:59 pmLooking-
Great comment. According to the Supreme Court, many other federal judges and large numbers of patent examiners the addition of an extra digit is trivial and could be accomplished by a high school student coding things up over a long weekend at a coffee shop.
Of course, the rest of us know otherwise.
-Gene
I’m looking at you 3600
November 17, 2015 02:50 pmGene – I don’t see what the problem is. Clearly all you are referring to is “adding an eighth digit” which is an abstract idea because it’s a fundamental economic practice, organization of human activity, and an idea of itself. I don’t have to provide evidence of why because this is an issue of law and not fact. What you are discussing could be done by a human using a pencil to add a digit. Moreover, you are merely implementing the abstract idea on a generic computer, which does not provide significantly more. Therefore what you are talking about would not be patent eligible subject matter. . .
Logic flow: unsupported assertion + conclusion + quote stock language + more conclusion = every rejection under 101 in 3600.
J Spohn
November 17, 2015 12:48 pmLet’s for a minute discuss what happened back in 1997~1999. Many of those programs were written to use COMP-3, or packed decimal as a way of storing dates. This minimized space usage. Let’s hope that whomever designed this system use binary, or COMP data types. If that is the case, then S9(8) or s9(9) COMP would have been used, and the largest possible value would be 2,147,483,647, which should more than suffice for many years to come.