Yesterday the Inspector General for the Department of Commerce issued a scathing report that questions the quality of the job patent examiners are doing at the United States Patent and Trademark Office. Unfortunately, the report is hopelessly biased and, therefore, wholly unreliable. Rather than perform an independent assessment, as IGs are supposed to do, the IG looked to see whether patent examiners are rejecting enough applications without regard to whether they are rejecting applications that deserve to be allowed. As such, this IG report contributes nothing more than the unjustified politicization of an important issue.
The IG’s report asserts that the audit of the USPTO reviewed three programs to determine patent examination quality: (1) performance appraisal reviews, (2) independent reviews by the Office of Patent Quality Assurance (OPQA), and (3) signatory authority reviews. The report explains that a quality patent is one that has claims that “clearly define and provide clear notice of their boundaries.” Low quality patents were defined as those “patents are those that contain unclear property rights, overly broad claims, or both.” The report explains that low quality patents are problematic because of the “[i]ncreasing concerns regarding abusive patent litigation.” Thus, the report itself cannot be said to be free from political influence and, in fact, plays into the misleading narrative that there is a run away abusive patent litigation problem in America.
Indeed, the report by its own admission looked at no more than one-half of the patent quality equation to reach its conclusion that patent examiners are not doing a quality job. It would have been appropriated, and expected, for the IG to engage in an even-handed review to determine not only whether patent examiners are issuing low quality patents, but also whether examiners are refusing to issue high quality patents, which is a real problem in at least some technology areas.
The reality that patent examiners in many instances refuse to issue quality patents on sound and commercially relevant innovations does not play into the preordained political narrative and, therefore, was not the subject of inquiry by the IG audit. What that means, however, is that this report, while it may provide some useful clues, cannot be treated as a thorough and thoughtful consideration of the important issues surrounding patent quality. Certainly, the Patent Office can and should be keeping better track of quality metrics in an objective manner, but the IG ignoring that patent quality is and must remain a two-way street is mind-boggling. Refusing to look at the matter from both the perspective of the public AND the perspective of the innovator is inexplicable. Looking at the issue from only one vantage point, namely whether low quality patents are issued, results in a predictable and inaccurate view of reality.
A fair treatment of the issue of patent quality would have necessarily considered those applicants that were wrongfully denied, as well as the extraordinary wait one must endure on appeal to the Patent Trial and Appeal Board to rectify examiner mistakes. Anything short of a fair and even-handed inquiry is not only inappropriate, but seems intended to lead to a conclusion that supports a preordained narrative. Sadly, this preordained narrative fits perfectly into the view of one side of the patent reform debate. With Congress considering patent reform in both the House and Senate the timing on the release of this one-sided report seems hardly coincidental.
Thankfully, at least the bias of the IG audit is not hidden. The report explains that the audit objective was, in part, to “determine the sufficiency of USPTO’s quality assurance program’s processes to prevent the issuance of low-quality patents.” The other objective was access whether there are procedures in place to ensure that examiners are fully qualified to issue patent determinations without supervisory review. Based on the stated objective of the IG audit, there was never any intention of reviewing quality objectively. The objective was to see if enough patents are being denied, period.
Throughout the report did, however, it was repeatedly stated that the Office of Patent Quality Assurance (OPQA) tried to explain to the IG that performance must include consideration of not only what should have been rejected, but also consideration of situations where examiners rejected claims that should have been allowed, which also leads to low-quality. It seems that perfectly correct and legitimate point of view did not resonate. I presume the reality that quality is a two-way street was ignored because it did not fit within the narrowly defined, predetermined viewpoint the report was intended to support.
Given the IG’s stated concern of abusive patent litigation it is hardly surprising that no effort was made to evaluate quality in a fair and unbiased manner. Still, completely ignoring quality from the point of view of the innovator calls into question everything about the IG report. Simply stated, a biased inquiry cannot lead to anything other than a biased report. Thus, those reviewing the IG report should take its conclusions with a healthy grain of salt.
Political reports that take into consideration only half the facts are hardly shocking in Washington, DC. Sadly, because this IG report lends an undeserving air of credibility that seems thoroughly intended throw the Patent Office under the bus in order to forward a popular misconception that the only problem with the patent system is that the Patent Office issues patents. As such, this biased report, which will influence the political debate over patent reform, places yet another burden on innovators who need and deserve patent protection.