Posts Tagged: "patent quality"

Much has been written about patent quality. But many authors approach this problem with a bias against the very idea of a patent system. These critics would “solve” the patent quality problem by cutting down the total number of issued patents rather than focusing on problem patents. They suggest increasing examiners and examination time will weed out bad quality patents. And this might throw up additional roadblocks to inventors obtaining a patent by increasing the time and cost of securing an allowance. But this does not necessarily improve patent quality. Instead, it merely reduces the total number of patents issued. Rather than “more examination,” solutions to the patent quality problem need to focus on “better examination.” In theory, “better examination” should stop invalid claims from ever getting issued while simultaneously streamlining allowance for valid claims.

On November 4, the U.S. Patent and Trademark Office (USPTO) hosted a webinar regarding the agency’s recent request for comments (RFC) on initiatives that the USPTO is exploring to enhance the robustness and reliability of patent rights issued by the agency. While the USPTO senior legal advisors moderating the webinar indicated that the agency was interested in hearing all viewpoints, the types of initiatives being considered could lead one to believe that ensuring robust and reliable patent rights means encouraging fewer U.S. patent filings.

Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) today announced the introduction of the Patent Examination and Quality Improvement Act of 2022, which is aimed at “evaluat[ing] and improv[ing] the patent examination process and the overall quality of patents issued by the USPTO,” according to a press release. Last week, Tillis told IAM that he would be introducing legislation to reform U.S. patent eligibility law, which is still to come. The bill announced today instead focuses on providing clarity around “what constitutes patent quality, the setting of patent quality metrics, and how the quality of work product performed by patent examiners is measured within the office.”

Measuring the quality of a patent portfolio doesn’t have to be subjective. There are a number of objective indices that measure patent families’ potential economic and reputational value, the breadth of patent claims and the statistical validity strength of a patent. The Patent Value Index, or PVIX, measures the potential economic and reputational value of a patent. PVIX scores each patent family on a curve from 0-100 using a weighted average of the GDP of the countries in which the family has granted members and the number of forward citations garnered by the family members compared to peer patent families in the same technology classes.

A recent New York Times Editorial Board opinion urged comprehensive reform of America’s patent system by focusing on a few examples of what the Board views as “bad” drug-related patents. Unfortunately, the opinion does not define what makes a patent good or bad. Nor do the sources relied on by the Board provide open access to the underlying data on which such judgments are made. Calls for improving America’s patent system should be based on more than unverifiable grievances. Real reform will take more than just suggestions that nibble around the edges of our current patent system in response to broad allegations of unfairness. Real reform needs objective standards for measuring patent quality that can guide improvements. Such evidence about patent quality may show that fundamental aspects of our patent system must be updated to keep it relevant for today’s innovation economy.

According to Strategic Goal 1 of the United States Patent and Trademark Office’s (USPTO’s) FY2020 Performance and Accountability Report (PAR), the USPTO is committed to high-quality patent examination in a timely manner. From submission to approval, the USPTO has established groundbreaking quality assurance programs, metrics, and training programs. It has also established IT modernization programs to improve the overall quality of the office’s work products and processes. These steps have made it possible for the agency to introduce new programs to significantly reduce pendency. A high-quality patent must adhere to the requirements of Title 35, and to the corresponding and applicable case law. To monitor and drive quality, the Office has been conducting both internal and external stakeholder perception surveys semiannually since 2006. In response to stakeholder feedback, the USPTO is providing detailed data at the technology center level, including filings, pendency, staffing, productivity, and inventory levels.

One ingredient that distinguishes a good patent portfolio from a great patent portfolio can be the synergistic strength of its U.S. and European patent family members. To develop this strength, it is not enough to have a U.S. attorney and a European attorney simply coordinate the procedural strategy for filing an application; rather, the drafter and manager of the application should analyze important issues upfront and prepare a patent application that accounts for the substantive differences between U.S. examination, U.S. courts, European examination, and national courts in Europe.

The Patent Infringer Lobby has ramped up banging the drum about “patent quality.” They dedicated a week-long campaign to questioning “patent quality,” which its constituents regard as a huge problem. Advocates have taken advantage of the vacuum left after U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu left the building. Anti-patent advocates are exploiting the new dynamic of Senator Patrick Leahy, coauthor of the America Invents Act (AIA), who now chairs the Senate Intellectual Property Subcommittee. Leahy recently did the Infringer Lobby the favor of holding a hearing on this subject.

The U.S. Senate Committee on the Judiciary’s Subcommittee on Intellectual Property recently held hearings on the topic of Protecting Real Innovations by Improving Patent Quality. The Subcommittee is to be commended for seeking practical solutions to improve patent quality. To this end, the author respectfully recommends that the Subcommittee and the intellectual property (IP) community take a close look at the United States Patent and Trademark Office (USPTO)’s revised Performance and Appraisal Plan (PAP) for patent examiners.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday heard from four witnesses on the topic of “Protecting Real Innovations by Improving Patent Quality.” The topic has been addressed by the Senate IP Subcommittee before, and long-debated in patent circles generally. Under the leadership of its new Chairman, Senator Patrick Leahy (D-VT), the Subcommittee now seems to be revisiting the conversation and looking for practical fixes.

On October 30, the Senate Judiciary Committee’s Subcommittee on Intellectual Property heard from five witnesses on ways to improve patent quality at the United States Patent and Trademark Office (USPTO). The Subcommittee subsequently posed questions to the witnesses, including professors Colleen Chien, R. Polk Wagner, and Melissa Wasserman, to supplement their testimony. Those witnesses have now submitted their responses, which expand upon their various suggestions for improving patent quality.

About a month ago, Steve Brachmann authored an article concerned with a brief given to Capitol Hill staff by Professors Frakes and Wasserman. The article highlighted fundamental, as well as practical, problems with Professors Frakes’ and Wasserman’s proposal (i.e. doubling the number of patent examiners as a means to reduce the number of invalid patents and thereby prevent societal harms) and how it could be detrimental to the U.S. patent system. The IPWatchdog article points to several issues with Frakes’ and Wasserman’s proposal, but does not discuss other approaches or options, such as using artificial intelligence tools to improve the patent application review process—an option that USPTO Commissioner for Patents Drew Hirshfeld said in a recent Senate IP Subcommittee hearing that the Office is actively pursuing. According to PWC, 72% of executives testify that AI improves internal operations while freeing up workers to perform more creative and meaningful tasks. In fact, while some might fear that “robots” will take human jobs, technological innovation has been proven to generate more jobs than it takes, while automating tasks, like patent search.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property, headed by Senator Thom Tillis (R-NC), yesterday heard from five witnesses on ways to improve patent quality at the U.S. Patent and Trademark Office (USPTO). Suggestions ranged from fixing patent eligibility jurisprudence to strengthening efforts on international work sharing, increasing patent application fees, and allotting more time for the examination process. The majority of panelists warned against the dangers of using patent quality as a means to simply block broad swaths of patents that particular industries or entities don’t like, and emphasized that clarifying U.S. patent law would likely go a long way to curbing invalidation rates.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property is holding a hearing on October 30 to discuss the quality of patents issued by the USPTO. This hearing should be a great opportunity to discuss the current and future challenges facing the USPTO, including modernizing the software tools used by examiners. Unfortunately, the hearing title (“Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?”) begins with the premise that there are poor quality patents and perpetuates the unsubstantiated position that past litigation abuse was due to patent quality. Perhaps a better start would have been to call the hearing “Promoting the Useful Arts: How can Congress help the USPTO improve patent examination?”