Hardly a day goes by any more when we don’t hear about the evils of the patent system. Haven’t you heard, villainous patent owners that are a curse on the tech community, affecting both big and small companies alike. You can run, but you can’t hide. With so many awful patents it is only a matter of time before you are the victim of a patent owner.
To listen to many tech CEOs, there has been an unchecked scourge on the patent system for the better part of the last generation. There are apparently many patents that shouldn’t have issued. While the problem is defined there has been great reluctance to say what such a conclusion must necessarily mean.
I personally believe the far larger problem facing the Patent Office is that some patent examiners refuse to allow any patents at all, but if you listen to what is said by many within the industry, my viewpoint seems to be a minority position. That being the case, perhaps it is time to game out what it really means when it is said there are too many garbage patents that should never been allowed.
If there really are so many garbage patents, illegitimate patents, I am hard pressed to interpret the criticism in any other way than as an indictment against the work product of patent examiners.
We hear the Patent Office talk about legitimate patent rights when discussing the need for additional patent litigation reform, presumably distinguishing “legitimate patent rights” from those that are not legitimate, or in other words illegitimate patent rights that have nonetheless been granted by the Patent Office. But if illegitimate patents threaten to fundamentally disintegrate the very fabric of the patent system an important question arises: Why hasn’t the Patent Office done anything about the problem?
If the problem of illegitimate patents is as widespread and longstanding as we are constantly told, isn’t it time for the Patent Office to acknowledge what necessarily must be true? Sadly, rather than point the blame at the decision makers, politicians, tech CEOs, the media and the public place the blame on those asking for the patent instead. Blaming patent applicants makes no sense. The buck has to stop with the patent examiners who decide to issue patents, not with the applicants who go to the Office hat in hand asking for rights. If some patents are so clearly illegitimate, as we are repeatedly told, patent examiners must not doing their jobs.
As I’ve said many times before, I believe patent examiners are overwhelmingly hard working and conscientious professionals. But if you look at the statistics there is a serious disconnect. For example, a primary job of the Patent Trial and Appeal Board (PTAB) is to fix the mistakes made by examiners when they have improperly issued patents. According to Lex Machina the PTAB is instituting 80% of inter partes review (IPR) petitions, which can only be interpreted as clear evidence of the extraordinarily low quality of patent examination at the USPTO.
It is unclear why patent examiners are not being taken to task when only 20% of their work product is viewed as satisfactory on its face upon subsequent review by the PTAB. What business could ever exist with an error rate that high? It seems plainly clear on its face – the USPTO must have a serious problem with very low quality performance by patent examiners. So why isn’t the Patent Office doing something to correct the problem? Why aren’t they placing blame on the shoulders of the ultimate decision makers that allow garbage, illegitimate patents?
Could it be that the problem of illegitimate patents has been greatly exaggerated? Could it be that the PTAB is really the unfair, unjust patent death squad that they have been claimed to be by critics? These would certainly be valid explanations for why the Patent Office refuses to take any blame, or assign blame to patent examiners from issuing what they perceive to be invalid, illegitimate patents.
The rhetoric being used to describe the need for further patent reform seems almost certainly an attempt to gain the linguistic high ground in order to jump-start stalled patent reform talks in Congress. Who could be against “legitimate patents”? Who could be in favor of “illegitimate patents”? Unfortunately, as the Patent Office buys into this unfortunate rhetoric in the name of yet another round of patent reform, the talks of legitimate patent rights does real damage to the innovation community.
There is absolutely nothing wrong with the Patent Office striving for better quality. Doing a better job during the examination process and striving for a better work product is not only laudable but is the responsibility of the Office. But once a patent issues that patent is presumed valid. It serves no purpose for the Patent Office to play any role in undermining the credibility of the agency, or the integrity of the rights it grants.
The Patent Office makes a grave mistake when they buy into the language of a two-tiered patent system and either explicitly or implicitly distinguish between legitimate and illegitimate patents. Once upon a time it was viewed as inappropriate for the Patent Office to even comment on possible invalidity of an issued patent.  Times have certainly changed, but if the Patent Office is going to continue to so openly engage in dialogue that calls into question the integrity of the agency and the system they administer they must do so for some greater good. If there really is a systemic problem with the allowance of low quality, invalid, even illegitimate patents then the Patent Office must be prepared to assign blame to the front line decision makers who issue those unworthy patents.
Of course, for a variety of reasons, the Patent Office will not throw patent examiners under the bus, nor should they. Still, the continued questioning of validity and legitimacy of issued patents without likewise lamenting a severe crisis of patent examiner insufficiency must be viewed with a skeptical eye. Language aimed at distinguishing between legitimate and illegitimate patents, as well as legitimate and illegitimate patent owners, is nothing more than political speak in furtherance of a reform agenda that will only further erode patent rights and make it more difficult for innovators to succeed.
 See Staying Litigation Pending Reexamination of Patents at pg 283, citing United States v. General Electric Co., 183 U.S.P.Q. 551, 552 (Comm’r Pat. 1974) in which the Commissioner of Patents and Trademarks reaffirmed the Office policy of refraining from commenting on possible invalidity of a patent.