High patent quality standard adversely impacts all inventors

By Jianqing Wu, Ph.D.
August 15, 2017

“The invalidation procedures will discourage inventive activities of all classes with the most serious impacts on independent inventors and accidental inventors.”

In the second article of this series, I showed that the high patent quality standard has caused U.S. to quickly lose technological advantages in the world. In this article, I will show that a high patent quality standard is discouraging all kinds of inventors.  I will propose two patent quality models including Low Patent Quality Standards and High Patent Quality Standards.

Low Patent Quality Standard. A low patent standard includes using a lower non-obviousness standard, charging low or no filing fees, paying no maintenance fees, adjudicating patent infringement without meaningful fees, with cash as partial rewards to offset partial costs.

High Patent Quality Standard. It is based upon the U.S. current patent system with high non-obviousness standard, examining applications by using worldwide prior art, using an inventors-hostile policy, charging excessive prosecution fees and maintenance fees, and using all kinds of invalidation devices to improve so-called patent quality.

To evaluate the impact of patent quality standards, I will focus on different classes of inventors and consider how the patent standards affect their inventive activities.

Corporate inventors (product-related research and development). Corporate R&D departments identify problems, and then try to solve the problems. Their inventing activities are heavily influenced by the patent law. Directors and division managers concern their own achievements. Securing patents is often a consideration in selecting research subjects. Successful getting patents may improve their performance ratings and get higher performance bonuses. Moreover, their ability to get project funds may also be influenced by historical performance in getting patents.

Long-term research & development.  Universities, federal and state research institutions, and a small number of big corporations run research and development programs. They often concern basic science. Some programs have long life cycles or go indefinitely. They are funded with endowments, donations, tuition and fees, state appropriation, federal appropriation, state and federal grants, joint research venture and their sources of funds. While the primary purpose of many of those programs is not for profits, getting patents is often a factor. Many universities use patents to get licensing revenues.

Drug discoveries.  Many programs for discovering chemical entities may take very long with a very low success probability (some has probability of less than 1/5000). Early inventors might be defeated by lucky later inventors. The high prior art standard can frustrate big research programs. Big patent challenges, like Kyle Bass 16 challenges to pharmaceutical patents, may impact drug discovery negatively.

Independent Inventors. Some problems are well known or could be experienced by anyone, and an independent inventor might try to find a solution to a known problem. Inventors may happen to have special knowledge or skill to address known problems or have adaptable solutions to known problems. Research costs, prosecution costs, and expected rewards directly determine the size of this class of inventors. Their inventions can solve known problems that could not be solved by people working within the fields of problems.

Accidental inventors. When a would-be inventor runs into a phenomenon, the inventor figures out what caused it, reduces to practice an invention, and files a patent application. Some accidental inventions include matches, stainless steel, plastic, vulcanized rubber, penicillin, x-ray, rice maker, microwave, saccharin, Teflon, Play-Doh, mauve, superglue, silly putty, corn flakes, slinky, Velcro, popsicles, chocolate chip cookies, ice cream Cones, and post-its.  Among the inventions, some (e.g., match and Velcro) could not be invented by other inventors, some (e.g. microwave and x-ray) would be invented by other inventors with time delays, and some may be subject of competition. Many accidental inventions could not be made by other inventors because they lacked any hints for the intentions. For more than 100,000 years, humans have used poor methods for setting file. In 1826, John Walker, invented matches. If John Walker had not invented matches, they might have never existed.

Professional inventors. Some people who have creating ability may become professional inventors. While inventors might have chosen particular fields, they would step into many fields. For them, the most important factors are prosecution costs and maintenance fees, the chances of getting patents, and the chances of getting rewards for their inventions. Professional inventors do not make inventions by accident, but may run into inventions by luck.

The high patent quality standard adversely impacts all six classes of inventors: corporate inventors, research and development inventors, drug discovery inventors, independent inventors, accidental inventors, and professional inventors, as shown in the following table:

Table 1. Summary of Adverse Impacts of a High Patent Quality Standard on Different Inventors

Inventions by corporate inventors are mainly for maintaining competitive position. If their inventions fall outside the scope of their products, inventions may be placed on shelf for anti-competitive purposes. High patent quality standard adversely impacts corporate inventors. It would discourage R&D directors, business leaders, and research staff from selecting programs to improve product quality. The obviousness doctrines bar patents for inventions involving size changes, shape adjustments, material replacements, and parts rearrangements etc., thereby discouraging product improvements. Relatively few people would use resources to make product perfection that can be copied by anyone verbatim. It thus leaves a big technological space unprotected. In reality, product perfection is very important in the international trade market. In my opinion, the lack of incentive in product perfection is the main reason that U.S. experiences steady trade deficits.

The filing-date-based priority rule is not good for long research programs and drug discovery activities. Drug discovery is expensive and often takes a long time with low odds of success. A company that might have spent many years of work has to abandon its project as a result of successful work by a later entry inventor. Even worse, a newly discovered drug may be defeated by prior art combination. When drug discovery is so uncertain, companies would have to charge highest prices possible. I suspect that recent drug price hikers might be natural responses to bad patent law.

The patent office uses bias examination policy, high prosecution fees, and high maintenance costs to discourage independent inventors from filing applications directed to frivolous subjects such as perpetual machines etc. Those measures are not well calculated to achieve the end. They have an adverse impact on inventors who could disclose good inventions. If such a measure can reduce 100,000 applications, it must exclude some good or even great inventions. Each of the good inventions may have great values and unpredictable impacts on the nation. Even assume that only hundreds of the inventions are important, the government cannot give up. What if some of them could change the U.S. history? What if some of the inventions can save tens of thousands of lives in an epidemic outbreak? The restricting measures not only stop bad applications, but also discourage good and great inventions together with underlying inventive activities in the U.S.

The constitutional goal of promoting the progress of science does not allow the patent office to make trade between inventions and the burden on the office staff. It is hard to believe that the cost for reviewing patent applications can exceed the values of inventions. It is well known that the patent office used funds generated from the patent office for other uses. Besides, if the patent office finds a way to deal with bad applications, it can quickly discourage frivolous applications. A sound measure is to get all those 100,000 applications, reject those directed to frivolous subjects, therefore, resulting in a gain of good and great inventions.

High novelty, high non-obviousness standard, inconvenient court venue for patent owners, and limited availability of injunction remedies, reduced damages, threatened liabilities will hurt all classes of inventors except that it has less impact on corporate inventors. The invalidation procedures will discourage inventive activities of all classes with the most serious impacts on independent inventors and accidental inventors. This is one biggest class of inventors who often come up with game-changing and surprising inventions. When would-be-inventors run into problems or solutions, why would they spend time and money to make inventions, spend more money to get patents, and get the business to defend patents in endless invalidation actions? High patent quality standard forces existing professional inventors to leave their invention business and discourages young people from becoming future inventors. In this highly uncertain time with a large number of dormant epidemic diseases, one or a few inventions may save population life when vaccine is unavailable.

The data shows that high patent quality, especially high-quality extremism, is a chief enemy for the U.S. technological future. Its impacts are to reduce would-be-inventors from the whole population to only a small number of corporate inventors and a few professional inventors., In terms of invention number, it can reduce the U.S. national invention capacity from its maximum theoretical capacity to an extremely small residual capacity (0.00004 or 4 inventions for 10,0000 people). Playing lotteries are better means for getting rewards. In terms of the number of invention concepts entertained by people, the high patent quality standard’s impacts would be far more than what is reflected in application numbers.

CLICK to CONTINUE READING… In the next article, I will discuss how a high patent quality standard is repugnant to the U.S. Constitution.

The Author

Jianqing Wu, Ph.D.

Jianqing Wu, Ph.D. (John Wu), Ph.D., is a registered patent attorney and an independent inventor having 8 U.S. patents in legal process, file storage security, open public computing systems, and online databases for the consumer market. His research interests touched sciences, engineering, law, and medicine. He earned B.S. in China, and received M.S. and Ph.D. (in Physical Chemistry) from North Carolina State University. He did postdoctoral research in Medicinal Chemistry in University of Illinois at Chicago and the National Institutes of Health. He learned methods and knowledge for characterizing whole complex systems. After he acquired J.D., he systematically studied the performance of the common law model and its adverse impacts on productivity. Being able to access multiple cultures, he conveniently used first-hand data in evaluating trade performance for different production cultures. Recently, he has developed a new interest in preventive medicine with his focuses on methods for preventing heart diseases, stroke and cancer. He was a member of four honorary societies: Phi Lambda Upsilon, Sigma Xi, Phi Tau Sigma, and Gamma Sigma Delta.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 7 Comments comments.

  1. Night Writer August 15, 2017 10:53 am

    Another problem is the lack objective standards. All the standards you mention put the decision in the fact finder’s hands.

  2. Paul Cole August 15, 2017 12:24 pm

    Groucho Marx, as I have reminded people before, found the secret of success in life. The secret of success is sincerity, he said. “If you can fake that, you’ve got it made.”

    Justice Bradley identified the secret of success in patents, see Loom v Higgins (1881): “It may be laid down as a general rule, though perhaps not an invariable one, that if a new combination and arrangement of known elements produce a new and beneficial result, never attained before, it is evidence of invention.” So if an inventor can fake a new and beneficial result never attained before, she or he has got it made.

    The standard is utterly objective. The problem is correct analysis and adducing appropriate evidence to convince the decision maker. But good quality, poor quality or trash quality is a complete red herring. The claimed subject matter is either valid or it is not. There is no middle ground, merely inadequate investigation and incorrect analysis.

  3. Anon August 15, 2017 4:43 pm

    Well stated, Mr. Cole.

    I would merely add that true innovation does not a clean and orderly progression make.

    By this I mean that in practice, innovation is rarely orderly and linear, but rather, occurs in fits and starts, often with (especially for disruptive innovation) an apparent step backward in what most lay people view as “progress.”

    I have attempted to capture this with an analogy contrasting a strong patent system as a parking lot versus a grid of streets. Most lay people (and several non-lay people) may want to picture patents as a “powerful” mechanism that should be limited to street building.

    Such would be a grave mistake.

    Instead, and yes, the visual is purposefully “less pretty,” a parking lot is a better symbol of a strong patent system because the parking lot provides the ability to turn on a dime and go in any direction, unconstrained by the typical orthogonality of a grid of streets.

  4. Benny August 16, 2017 6:56 am

    High quality patenting – “It is based upon the U.S. current patent system”.
    The US and who else? EPO, JP, IL,CA, AU, ES, KR, did I leave anyone out? Ah yes, the French. (Excluding German utility patents)
    The high quality patent Wu refers to is more or less worldwide standard.
    “High patent quality standard adversely impacts corporate inventors” – and what would be the effect of low-quality patent standards on corporations? My guess is, hugh numbers of junk patents and competitors beating each other down in court battles and litigation rather than trying to put a better mousetrap on the market.
    “high prosecution fees, and high maintenance costs …” forgot to mention unaffordable (for the independent inventor) attorneys fees, in comparison which the maintenance and prosecution fees at the USPTO pale into insignificance.

    I get the impression that Wu is in favour of dumbing down the US patent system, to the point where it is incompatible with patent systems elsewhere in the world.

  5. Anon August 16, 2017 7:44 am

    Your impression is not correct Benny – while perhaps the wording is in a stage of metamorphosis, the concept being developed is NOT any sense of “dumbing down” (that requires buy in to the “gold-plated” and “Troll” Efficient Infringer propaganda), but is instead related to “Quality Extremism”.

    By the way, the “world-wide” avenue ALSO reflects the Efficient Infringer propaganda, and perniciously opens the door to influences on sovereign law from trans-nationals who, while perhaps enjoying jurisitic “citizenship” are not bound by any sense of fealty to a sovereign, as would a full-fledged citizen.

    There is clear danger for abuse from trans-nationals.

  6. Benny August 16, 2017 7:53 am

    Where I come from, “quality” and “thoroughness” are not dirty words.

    “There is clear danger for abuse from trans-nationals.”
    Couldn’t come up with any examples. Give a nudge in the right direction?

  7. Anon August 16, 2017 4:52 pm

    Benny,

    Couldn’t come up with any examples“…
    Please pay attention – I have spoken many times on trans-nationals and the AIA.

    As to “not dirty words,” you need to recognize why then the evolution to Extremism (my vote for the word to use) plays into the picture.