The Blame Game: Why hasn’t the Patent Office done anything about low quality patents?

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. [1] 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.

_______________

[1] 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.

Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

68 comments so far.

Stephan Curry
April 6, 2016 08:35 pm
Night Writer March 28, 2016 6:02 am
One thing to think about: the anti-patent judicial activist and the PTO are aligned on one issue. Both want to blame the applicant for poor patent quality. You have to love it, Lee squawking around as if she is being taken advantage of by patent applicants. Completely removes any responsibility for her job.

Night Writer@65
Do ask the Director of the Office if she has ever written a great claim by herself without asking anyone. I’m sure Elohim would like to anticipate her answer. In fact, give her a simple EDA embodiment and see if she can write you a broad apparatus claim and broad method claim. If a patent attorney in Washington DC will accuse the entirety of the patent bar of writing and filing patent applications with unclear claims, then that patent attorney herself should be able to write a claim on her own as an example. now hypothetically if this patent reform is being done to make certain software patent attorneys to squirm, the unintended consequences of these drug patent invalidations are being seen now with medical drug prices tripling in prices this week since drug makers are worried on getting back their R&D investments.
Patent Ranger
March 31, 2016 07:51 pm
Sorry for spelling errors. Autocorrect on the iPad gets me every time. Let me try again.

I’m an examiner and can give a few insights. First, it would be useful to look at the invalidation breakdown by tech center. It seems to me that abstract business methods are much more difficult to find prior art for than say mechanical inventions like a garden hoe. Second, we have limited time. In my area we have to dispose of something in 12 hours. That’s a full write up and a search on every claim including those dependent claims you have no interest in ever rolling up into the independent. Let’s say I get an additional 4 hours making it 16. I don’t think this will even solve the issue. In business methods it’s very difficult to search some of these routine and conventional yet pointless steps. Oh, I can’t find checking if at least three images are stored in the database before generating a product page, even though I searched for five hours on a single limitation… But is this truly novelty? Third, this is simply a subjective job and it’s half the fault of the attorneys for filing to broad at the start. File narrow, concise claims. If something sticks then do a CIP. Just my two cents
Patent Ranger
March 31, 2016 07:47 pm
I’m an examiner and can give a few insights. First, it would be useful to look at the invalidation breakdown by tech center. It seems to me that abstract business methods are much more difficult to find prior art than say mechanical inventions like a garden how. Second, we have limited time. In my area we have to react something in 12 hours. That’s a full write up and a search on ever claim including those dependent claims you have no interest in ever rolling up into the independent. Let’s say I get an additional 4 hours making it 16. I don’t think this will even solve the issue. In business methods it’s very difficult to search some of these routine and conventional yet pointless steps. Oh, I can’t find checking if at least three images are stored in the database before generating a product page, even though I searched for five hours on a single limitation… But is this truly novelty? Third, this is simply a subjective job and it’s half the fault of the attorneys for filing to broad at the start. File narrow, concise claims. If something sticks then do a CIP. Just my two cents.
Night Writer
March 28, 2016 06:02 am
One thing to think about: the anti-patent judicial activist and the PTO are aligned on one issue. Both want to blame the applicant for poor patent quality. You have to love it, Lee squawking around as if she is being taken advantage of by patent applicants. Completely removes any responsibility for her job.
Mike
March 26, 2016 11:47 am
As an inventor, I see that more of the problem is in the PTAB, Federal Circuit and the SCOTUS. The Examiners (on average) seem to be much more in touch with what it takes to invent something. The Examiners also seem to be more knowledgable in their field and more in-tune with “unpredictability” in the art and what art might reasonably be combined in the real world. When the PTAB (or higher ups) gets involved, they seem to lose context and scope of the actual process and work one takes to invent something. Then from on high, they claim everything to be obvious.

Isn’t it possible that the PTAB, Federal Circuit and SCOTUS just lack the technical skill to do their jobs?

I think many Judges (and quite a few attorneys) should take the route of Scalia in Myriad, if they were honest…..

“JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”
Edward Heller
March 25, 2016 07:28 pm
Sam Elliott@61, I agree that there is something unsettling about the high rate.

May I conjecture here just a bit.

I do not think that most of the 80% are instituted based on anticipation. If Examiners are missing anticipatory references, there is something wrong with the PTO search engines.

We are left with a combination of references. Here we get two obvious things that bias towards institution:

1. BRI that is designed to read on the prior art, and/or throw back in a patent owner’s face a broad construction they may have advanced in a notice of infringement or trial; and

2. KSR.

Now the way KSR is being used at the PTAB level, it is as if all one has to do is cite two (or more) references in the same field of endeavor disclosing all the limitations of the claims. Sprinkle with KSR magic dust, mumble the KSR chant (the list from the MPEP will do just nicely), add a sycophantic expert report that does the same thing, and the IPR is instituted. The combination of KSR and BRI, as administered by the PTAB is lethal.

To mask the travesty afoot, the Federal Circuit to day simply issue Rule 36 judgments affirming.

I think I am right in this. The problem mainly is not bad examination, but the PTAB. Nothing is going to fix this problem unless we get rid of IPRs and potentially the Federal Circuit as well.
nat scientist
March 25, 2016 06:38 pm
Edward @60:
Fighting indigenous freedom everywhere and always is the hallmark of empire. Killing the incentive for the inventive spirit is a crime against evolution, but human nature depends on awareness to evolve and the media is manufacturing the billionaire’s consent. Trying the case in the press may be more effective than begging for approval when the deck is stacked. Don’t play poker with a guy named “Doc” it’s said.
Good luck with the writ. Pay up for a ticket to the next whack like the US Pinata and Tpp Okey-dokie shuffle off to Buffalo.
Economics doesn’t mean anything without the Individual in the center of the action.
Simon Elliott
March 25, 2016 06:13 pm
A lot of the arguments by contributors seem to be missing the larger point made by Gene. The 80% death rate on IPR is very strong evidence of a serious problem with examination quality and/or IPR and post grant review standards.

If examination is defective, then it is fundamentally unfair for the PTAB to assert BRI without a realistic chance to amend (as they do everywhere else in the world). If PTAB standards are wrong, then they should be reformed and not insisted on.

The lack of a chance to amend in a court case makes sense in view of the different claim construction standard and the fact that the court has no purview over the amendment and granting of claims. The same does not apply to the PTO’s court.
Edward Heller
March 25, 2016 04:29 pm
nat@59, you don’t know how many inventors as small companies have called me and wished me and MCM well in our constitutional challenge to IPRs. Let me assure you that our flag has not fallen and that we are still in the field. Our petition for certiorari has been extended to April 29.
nat scientist
March 25, 2016 01:14 pm
The qualification of granted patents is about as legitimate an argument as deciding whether the Spratly Islands in the South China Sea or Battery Park City in Manhattan are Real Estate and legitimate earth. The politicization of the patent judiciary is in no small way illustrates their goal-line defense of “crony capitalism” by any means necessary. The Fifth Amendment of the US Constitution guarantees the rights of private property when lawfully granted, not a ticket to a million dollar wrecking ball and chain by the established set of pluto-techocracis actors in due course. I’ve but one fortune to give to patent rights and that’s been done. Passed Alice test via DDR Holdings, ruled “Indefinite” via a single defense expert witness who couldn’t manage to perform the existing art without the opportunity to subsequently refute, SCOTUS declined to pay attention. Where is the Fifth Amendment right of the lawful possessor of property amongst all this quibbling? There simply is no integrity and the course is duplicated in the destruction of electronic stock trading from the SOES bandits in 1998 to the HFT spoofing reality of the 2010s. I think Mr.Macchiavelli posited that Peace is the set of conditions imposed by the winners on the losers of the last war. There will be blood for crude oil, but no more inventions from individual investors.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/takings.htm

The Issue: The Fifth Amendment provides that private property shall not be taken without just compensation. What actions of government constitute “takings”?
Benny
March 25, 2016 12:20 pm
Gene at 57,
The answer to your first question is, of course, no. Nor did I make any suggestion that examiners only make mistakes when dealing with valuable patents. In fact, I do not see anything in my post which could lead you to draw that conclusion.
Gene Quinn
March 25, 2016 11:28 am
Benny-

Is it actually your theory that the examiner work that does not reach the PTAB is error free?

Are you actually taking the position that the only mistakes examiners make are in patents that are commercially very lucrative to the patent owner?

You do realize the selection bias at play here, right? Others seem to want to focus on selection bias being limited to people picking bad patents to take to the PTAB. But let’s be perfectly honest — the selection bias is with respect to patents that are infringed and commercially valuable for the patent owner. No one in the right mind would pay the hundreds of thousands, or over $1 million, to challenge the errors examiners make in commercially worthless patents. That should be self evident.
Benny
March 25, 2016 10:19 am
Gebe at 53,
again I take issue with your logic. You assume that if 80% of valuable patents contain invalid claims, the same is true of commercially worthless patents. I hold the view that it is far easier to obtain valid claims which are commercially worthless because a) there may well be less prior art in a field which holds limited financial potential and b) the claims may well be both valid and commercially worthless because of their narrowness. The other side of the coin are claims which are both invalid (possibly) and valuable because they are overly broad.
Benny
March 25, 2016 10:12 am
Gene,
Examiner Statistics actually got his numbers right. While the percentage of examiners’ work that is in error could be anywhere between 0.8% and 80%, the figure of 0.8% derived by Examiner Statistics refers to the percentage of the examiners total work that is reviewed by the PTAB and found wanting, not the general error rate. I would guess that the work of the majority of USPTO examiners never reaches the PTAB at all.
A Rational Person
March 25, 2016 10:11 am
Paul@52

“This is comparing two very different situations. With prior art available on the internet now doubling roughly every four years, it is hardly surprising that application examiners with only a few hours of available claim analysis and prior art searching time are not finding and applying the best possible prior art, even if very conscientious. That is simply not validly statistically comparable to the IPR situation, where a defendant being sued for patent infringement can well afford to spend many thousands of dollars on an exhaustive patent or publication prior art search, and to only filing IPR petitions selectively against a minority of patents in suit for which an IPR may avoid or settle expensive patent litigation.”

Of course, I would argue that this illustrates one of the many problems with the KSR test: the KSR test gives the superpower to a person of “ordinary skill in the art” the “superpower” of knowing not only everything in the person’s own field but in all of the fields related to the person’s field. As you illustrate, even an Examiner who is considered a person of MORE than “ordinary kill in the art” does not posses this “superpower.”

In fact, the general trend in scientific research for a century or more, because of the the increase in scientific research and the explosion of information, has been for scientists to become more specialized. It’s often hard enough for scientists to keep up with latest developments in their own sub-specialty much less keep up with developments in “related sub-specialties,” much less “related fields.”

From years of working with scientists as a patent professional, I know firsthand how unusual it is for a scientist to be able use concepts from a field outside their own and apply those concepts to a problem in their own field. The KSR test totally ignores this fact.
Gene Quinn
March 25, 2016 09:48 am
Jim-

You say: “The patents on which IPRs are filed are not randomly selected – they presumably are filed because someone (the party making the decision to file) believes there it is likely (or at least not unlikely) that the PTAB will find one or more claims in the patent invalid.”

That is certainly true. Absolutely no doubt about that. But it is also true that the only time anyone would spend the hundreds of thousands of dollars necessary to invalidate at least one claim in an IPR is when the patent being challenged is commercially relevant. So these patents are not randomly selected at all. They are selected specifically because they are commercially relevant. If they were not commercially relevant even if there were one or more claims invalid no one would spend the many hundreds of thousands of dollars to challenge them.

These patents are not selected only because they contain claims that are likely invalid. They are selected for a very different reason. Thus, I find it impossible to believe that if 80% of commercially relevant patents likely contain invalid claims that it is anything other than extremely likely that patents that are commercially worthless likewise have the same, or at least a similar error rate.

-Gene
Paul F. Morgan
March 24, 2016 08:28 pm
This is comparing two very different situations. With prior art available on the internet now doubling roughly every four years, it is hardly surprising that application examiners with only a few hours of available claim analysis and prior art searching time are not finding and applying the best possible prior art, even if very conscientious. That is simply not validly statistically comparable to the IPR situation, where a defendant being sued for patent infringement can well afford to spend many thousands of dollars on an exhaustive patent or publication prior art search, and to only filing IPR petitions selectively against a minority of patents in suit for which an IPR may avoid or settle expensive patent litigation.
How many complaining inventors would be willing to pay for the added application costs that such an expensive a prior art search, and adequate spec and varying scope claim distinctions over it, would require?
Being able to sue on a patent and rarely risk the defendant being able to defend with better prior art the examiner missed except in a full blown trial and appeal has not been true for many years, since the reexamination system was established. IPRs move faster, are handled by APJs, and the prosecution arguments and declarations are no longer just from only one side and unchallengeable.
Concerned
March 24, 2016 07:28 pm
examiner statistics @40. Congratulations you win the most stupid comment award in the history of IPWatchdog. Sorry for making it personal, but someone has to say it. It should be clear to anyone reading this blog that only patents believed to be good are brought before the PTAB. Gene @47 went way to soft on you. And I bet we all know who you likely work for!
A Rational Person
March 24, 2016 06:01 pm
Edward@46

“David Stein@45, not so common in my practice, but I see it. This IS an unfortunate result of using BRI where the examiner seems free to interpret the claims anyway he pleases.”

I also think it’s a result of KSR and an overreliance on text searching.

Back in “ye olden day” when I first started out as a searcher, I never wanted to start searching patents for a novelty search before consulting with an Examiner in the relevant art. Without the ability to rely KSR and text searching, in order to do their jobs, they had to really learn their art and develop a sense of what what old and what might be new. They would also make collections for themselves of key patents that showed features that were commonly claimed in their art.

Consulting with an experienced Examiner could vastly improve the quality of my search, not to mention greatly reduce the time it took to do the search, because I could largely rely on the Examiner’s knowledge of their art as to where the type of patents I was looking for might be found.

In contrast, I think KSR, text searching, and the demands of the current USPTO administrators and SPEs seems to be “dumbing down” the searches and rejections of many examiners who are probably every bit as technically skilled as the Examiners were when I started out as a search.
Jim Liles
March 24, 2016 05:46 pm
I think the unstated premise of your article, that 80% of issued patents are invalid, or would be found to be invalid by the PTAB is an excellent premise to generate discussion, but as some of the other comments have noted, the significance of an 80% rate of instituting IPR is subject to quite different interpretations. One thing these statistics do not support is that “only 20% of [examiners’] work product is satisfactory. To expand on the earlier comments about “selection bias,” I agree with those comments but think they are greatly understated. The patents on which IPRs are filed are not randomly selected – they presumably are filed because someone (the party making the decision to file) believes there it is likely (or at least not unlikely) that the PTAB will find one or more claims in the patent invalid. And given the resources needed to search and gather the information needed prepare a respectful petition, it might be said that the implication from the statistic that 20% of the petitions are not granted says more about the judgment of those preparing and filing the petitions than about the validity of all granted patents.

Similar comments are often made about the percentage of patents found invalid in the courts. But, in a perfect world, all litigated matters would end up with 50% wins and 50% losses for on a particular issue. Assuming competent lawyers that can reliably predict the outcome of a lawsuit, only the cases that could go either way are litigated, the others being settled before final decision. Of course, there are many factors beside the likelihood of success that go into deciding whether to try a case, but the larger point (ignoring those other factors) is that the outcome should be 50%
if the lawyers on both sides are doing their job, and the percentage of successes depends on the selection process, not the standard on which the issue (patent validity or any other issue) used. When the standards change, the cases that are selected to go to full litigation change.

I also agree patent examiners are largely (I am not sure I can go with “overwhelmingly”) hard working and conscientious professionals, and that there are many applications that examiners improperly refuse to allow. But at the other end of the spectrum, anyone who denies there are many garbage patents is in denial. Though some percentage of examiners’ work product is unsatisfactory (and I suspect it is far less than 80%), the percentage of IPRs instituted is not probative on that question.

By the way, you have a great blog.
Gene Quinn
March 24, 2016 05:32 pm
Ternary-

You say: “It now looks like a bait-and-switch system. You will get a patent, which will be taken away in post-issuance procedures, preferably at the moment when you want to obtain its legal benefits as a rightful owner.”

I can’t tell you how many times I hear that from inventors, small businesses and patent attorneys who represent innovators. That is what everyone is talking about, and why I wrote this article. I wish I could have captured this very real sentiment in such a concise way. I may need to lean on this quote for a future article. This sentiment, which is grounded in factual reality, is going to destroy the patent system.

-Gene
Gene Quinn
March 24, 2016 05:28 pm
Examiner Statistics-

You write: “The kids of Houston’s Young Inventor’s Showcase would be well served by smarter patent policy. To say America’s innovative future depends on it is an understatement.”

Interesting hair you are splitting, and somewhat hard to believe really. You do realize that the Patent Office does not presume that patents are valid when they return to the Office, correct? Are you actually suggesting that commercially worthless patents, which make up well over 90% of all patents, are presumed valid by the Patent Office? It would be so perfectly government to say that worthless patents deserve a presumption of validity but patents that are valuable and represent innovation being used in the marketplace are not deserving of such a presumption.

You say: “The actual statistic is 80% of examiner’s work that gets challenged at the PTAB has a proceeding initiated.”

And that means that on its face after a relatively quick review by the PTAB there is a reasonable likelihood that one or more claims are invalid, or in other words that an examiner made a mistake. If you go back and read what I wrote you will see what I said is perfectly correct and accurate.

You say: “more like .8% (max, actually less) of their work is being deemed invalid after issue.”

That is simply a lie. Even if you don’t factor in all the claims that are abandoned by patent owners rather than brought through the process it is way more than a .8% error rate. Obviously you are not at all intellectually honest or interested in a serious discussion.
Edward Heller
March 24, 2016 05:27 pm
David Stein@45, not so common in my practice, but I see it. This IS an unfortunate result of using BRI where the examiner seems free to interpret the claims anyway he pleases.
David Stein
March 24, 2016 04:44 pm
I’ve said this a bunch of times:

Bad allowances often stem from bad rejections.

For instance: I claim a particular improvement to a baseball bat. The examiner rejects it citing, by turns, a snow shovel, a golf club, and a cucumber. I make distinguishing arguments about each one, and then the examiner issues a notice of allowance. Has the invention really been well-examined? How much confidence do we have that, if asserted, the patent won’t be invalidated based on directly applicable prior art that the examiner’s poor searching didn’t find?

What are we supposed to do, as patent practitioners? Telling the examiner that he or she *really should keep searching* is directly contrary to our clients’ interests, including looking like an attempt to prolong prosecution and inflate costs. Reporting it within the USPTO, such as to the examiner’s supervisor, is likely to damage our relationship with the examiner – and incur a grudge against us and our clients, for all cases going forward. All we can do is advise our clients, privately, that the patent office dropped the ball, and recommend supplemental searching to validate the enforceability of the patent prior to its enforcement.

Moreover – to the patent office, the examiner appears to have done a yeoman’s job. The examiner dutifully performed several searches. A bunch of rejections went out on time and with new references. The examination record captures meaningful arguments from the applicant about the distinction. The notice of allowance affirmatively states why it’s allowable (“a baseball bat is neither a snow shovel, a golf club, nor a cucumber”). By the numbers – what’s not to like? … except for the minor fact that the search was never in the same ballpark (ha ha) as the invention?

This is a very bad situation. Practitioners are helpless to report it. The patent office has no way to assess it. Clients waste their examination fees on a system that has failed to perform a meaningful examination. And the broader patent community witnesses a stream of patents that look overbroad compared with the prior art – and an explanation in the prosecution record that seems very unsatisfying.
Curious
March 24, 2016 04:43 pm
I can think of no more valuable way to spend my time than blocking a competitors patent which could potentially prevent me from taking my product to the market and seeing a return on investment
Haven’t you heard? Injunctions are rarely issued so their patents will unlikely prevent you from taking your product to market. The far more likely scenario (over injunction) would be that you would have to pay a royalty. However, the far more likely scenario is that you’ll have a bunch of patents that they are also infringing and then you’ll cross-license.

If it was worth it for companies to monitor their competitor’s patent applications and attempt to block them from getting patents, they would be doing so in great numbers. While in certain, select instances this does happen, in most instances it just isn’t worthwhile. Too much investment needed on something that will provide a nebulous return.

Also, how much priority do you think any engineer would give such a task? Bob — you need to finish this code before our launch date, but could you also look at these patent applications from one of our competitors? What do you think Bob is going to focus his efforts on?

Crowdsourcing has been tried in the past — with little success.
Curious
March 24, 2016 04:33 pm
Benny@23
If one of those patents subsequently forces a small business to close, with the loss of 15-20 jobs, that’s hardly likely to interrupt the examiners sleep at night.
LOL. 15-20 jobs probably means a payroll of at least $1 million a year. Considering that overhead and non-payroll variable costs, that business needs to be generating at least $2-$3 million a year. There are plenty of search firms that can do a very competent patent prior art search of $5-10K. Assuming the search finds good prior art and if you want to bargain hunt, you can get a patent into ex parte reexamination for $10-$20K more. A company generating $2-3M a year cannot spare enough money to put a patent into reexamination?

This is what I find amusing about the anti-patent side — they base their analysis on fact patterns that have little basis in reality. Regardless, in my decades of practicing, I’ve never heard of any single company go under because of a patent lawsuit.
A Rational Person
March 24, 2016 03:30 pm
Edward@36

Thanks for that very timely reply.
Selection Bias
March 24, 2016 03:24 pm
“Selection bias. Interesting. I guess you are right. The commercially valuable patents challenged at the PTAB are likely among the lowest quality patents issued by the PTO. The 98% of patents that provide little or no value whatsoever are likely of much higher quality. LOL.”

Those cases have vastly more art being made of record, often with large search budgets. Last I saw, the vast majority of PTAB decisions were over newly cited art in the new reviews.
examiner statistics
March 24, 2016 03:20 pm
“Out of curiosity, how does the patent examining corps feel about the fact that 80% of their work product is being deemed erroneous/subpar/just plain wrong by the PTAB?”

Patent examiners don’t see 80% of their work product being invalidated at the PTAB. Gene is kind of skewing the statistic. The PTAB only sees a tiny fraction of the total issued patents, the vast majority of which are still presumed valid and never even challenged. The actual statistic is 80% of examiner’s work that gets challenged at the PTAB has a proceeding initiated. That doesn’t mean it gets invalidated and it doesn’t mean that 80% of the total of examiner’s work is even involved. It’s more like 80% of 1% of examiner’s work has a PTAB instituted IPR. So more like .8% (max, actually less) of their work is being deemed invalid after issue. That’s pretty good numbers.
Edward Heller
March 24, 2016 02:42 pm
I agree with OLD R&D guy that a combination of hiring people with actual experience in the art as examiners with loosening the procedural requirements for examination (compact prosecution) will result in better patent quality.
Edward Heller
March 24, 2016 02:39 pm
A rational@35 “Since KSR I cannot think of a single Federal Circuit case in which combination of references was considered an improper combination because it was based on hindsight.”

Just today: PURDUE PHARMA L..P. v. DEPOMED, INC.

“Moreover, to the extent that Purdue relies on the
problem to be solved to supply the reason to combine the prior art, it failed to demonstrate to the Board that the problem was known in the art or that Purdue’s formulation of the problem was derived directly from the prior art, rather than from the challenged claims. The Board therefore did not err in finding that Purdue improperly relied on hindsight in formulating the problem to be solved. Insite Vision Inc. v. Sandoz, Inc., 783 F.3d 853, 859 (Fed. Cir. 2015) (“Defining the problem in terms of its solution reveals improper hindsight in the selection of the prior art relevant to obviousness.”)
A Rational Person
March 24, 2016 02:10 pm
Michael@34

A key problem with KSR is that it effectively made hindsight combinations of references permissible. Because TSM was based on what the references themselves or other evidence present prior to the date of invention taught or suggested, there was a built-in check in the TSM test against hindsight reasoning,

Since KSR I cannot think of a single Federal Circuit case in which combination of references was considered an improper combination because it was based on hindsight.
Michael
March 24, 2016 01:23 pm
I believe that the kill rate by the PTAB is in large part due to the uncertainty created by KRS.

What is or is not obvious lies on a continuum between everything is obvious and nothing is obvious. It is generally agreed that the extremes are not acceptable so the Supreme Court decides the cutoff between obviousness and non-obviousness.

The TSM test while not perfect provided a more definitive approach to analyzing obviousness – and in some ways it was more in line with how various technical fields view invention.

KSR’s “you will know it when you see it” approach has completely neutered the predictability of TSM allowing for outcomes anywhere along the continuum. Often the outcome is influenced by an examiner’s beliefs and biases and management dictates as to what is an acceptable allowance rate. KSR also confers great latitude onto the PTAB to also decide what is or is not obvious – and we all know how this is working out for patent owners.

KSR was the first step in the dismantling of the patent system in that it targeted allowability by blurring the line in favor of outcomes toward the everything is obvious end of the continuum.

Next, the software and biotech decisions targeted claims not easily killed by the new standard for obviousness by removing these inventions completely from the obviousness continuum.

Now, the patent quality reformists are cleaning up loose ends.

The end result is a system wherein it is difficult (if not impossible) to predict outcomes. If you are pro-patent this is sad, but if your anti-patent it is the golden age. Meaningful and positive change will only occur if the pro-patent side regains control of the patent reform process.
Gene Quinn
March 24, 2016 12:56 pm
Brent-

Would you care to elaborate on which laws were ignored in the writing of the article?

Frankly, I don’t think you understood the article. And if you think I’m a shill for tech companies you obviously have no idea who I am. Before making such ridiculous claims you might want to try and inform yourself.

-Gene
Brent A Beck
March 24, 2016 12:36 pm
Bad article in that your opinion/editorial is another case of not applying laws already in existence. Tech companies need only show Prior Art and then cases regarding claims will not even get arrive to courts. You’re a schill journalist wanting Tech Companies to have blanket ownership of all digital. The reason is much prior art stands isolated for years & then a Tech Company wants to say we knew about that, then why didn’t they exploit said prior art? Hell burns just as hot for Tech Fascism as it does political. I have a patent for an Improved Desk Computer Mouse that moves only in one or two perpendicular directions which no one else has ever conceived in decades of popular culture computer use, but it’s sure I won’t see a cent or it will stay un-exploited. My same Patent for reverse direction feeds for digital data wherefore unachievable on analog paper. How many years has no one else conceived my two patents above yet tech companies will knee-jerkedly think it’s theirs?
Ternary
March 24, 2016 12:22 pm
Gene, you clearly hit a nerve with this post.

Over the last 10 years, since I started doing inventions and working in patent prosecution, the US Patent System has transformed into a Byzantine system that appears to have as a goal to deny the benefits of having a patent. It now looks like a bait-and-switch system. You will get a patent, which will be taken away in post-issuance procedures, preferably at the moment when you want to obtain its legal benefits as a rightful owner. In fact, the whole atmosphere is telling potential infringers not to pay for any invention as it is much cheaper to challenge a patent.

Gene is right in naming patent ownership becoming a Sport of Kings. Very much like the European system. The potential rejections and invalidations just keep accumulating. The difference here with Europe is that the EPO is not shy about charging enormous fees and does not even pretend to be supportive of small inventors. But we will get to that stage in the US also under the guise of “increased quality.” Everything is pointing in that direction. The cry for improved quality will be used to pare the system, not to improve current quality.

The US Patent System has experienced so much change over the last 10 years and has been manipulated for corporate and private interests to the extent that the goal of having a patent system seems to be unclear or lost to many people. Heck, it is now unclear what an invention actually is. Right at the time that our entire economy seems to turn into a digital economy the patent system classifies whole sets of computer based inventions as ineligible abstract ideas. On top of that it seems that a technical dictionary that contains claim terms is sufficient to reject or invalidate on the basis of obviousness.

Many tell me that this is part of a pendulum swing that is normal in the US patent system. It could be, but it seems to me that the US patent system is on its way to self-destruct. What we will be left with is a plutocratic corporate patent system like in Europe: for the wealthy by the wealthy.
angry dude
March 24, 2016 11:21 am
A Rational Person @27

I’ve always thought that patent examiners should be a bunch of highly-qualified technical people (MS and PhD levels) with some additional legal training, who actively police their respective fields for new developments (not just patents, but IEEE publications, conference proceedings etc.), not a bunch of kiddies doing text searches and plugging in terms the meaning of which they don’t understand…
A Rational Person
March 24, 2016 10:05 am
Concerned@23

One problem with current examination is that there should be more time allocated to an Examiner to do a search. But, because there is a history of fee diversion at the USPTO, inventors and patent professionals do not trust that any additional fees paid will necessarily go to improve examination.

Another problem with examination is that Examiners are being asked to do two jobs, only one of which they are usually qualified to do: (1) Search for relevant prior art and (2) Put together a rejection based on the prior art. Examiners almost always have the technical training for (1) but usually do not have the legal training for (2). For comparison, with respect to private searching, searching and patent search reports be they for novelty, validity or infringement are usually not done by single person. The search is usually done by a search expert and the report is usually done by a patent professional who directs the search and reviews the prior art found to provide a search report.

I think that allowing Examiners to just focus on finding prior art and properly training their supervisors to direct searches and write office actions could significantly improve the quality of office actions. The Examiners would also have the advantage over most private searchers of becoming experts in the particular field in which they search.

I would also argue that KSR has only made the Examination process worse by causing many Examiners to focus on text searches for terms instead of thinking about such things as: the state of the prior art prior to the applicant’s invention, what direction the prior art was going prior to the applicant’s invention, why a person of ordinary skill in the art who did not have the applicant’s application in front of him/her would combine the references, etc.

In many Office Actions I have seen, it is clear that what was done was the Examiner conducted a text search to find terms in the claims, the Examiner did not determine if the terms in the cited prior art were referring to the same thing asthe terms in the claims, and then put together the reference using the applicant’s application as a roadmap and then provides a hindsight rationalization for why prior art references that would never have been combined but for the existence of the applicant’s application would have been combined by a person of ordinary skill in the art.
Old R&D guy
March 24, 2016 09:43 am
A technical perspective;

As a technical person, I see a lot of gaming of the system on the part of patentees. A smart patentee will know where the prior art is and then change the language used to make it seem as if it is different. Has someone claimed modulus? Use compliance instead (the inverse of modulus) or something else that is proportionate.

Most examiners are fairly broad technically but not nearly as deep as one of deep skill in the art (as opposed to PHOSITA). Further, an examiner is not allowed to use his gut (as it were) but is rather restricted in why he can make rejections (it has to be written somewhere in a clearly related fashion). If you want better patents, remove the examiner restrictions that allow patentees to game the system and hire examiners with deep skill in the art…….and then deal with the consequences (which would probably be about 20% of all patents being allowed compared to what we have now…….if Gene’s numbers are accurate). For this community it would basically mean we kill the golden goose. Not sure it is wise to plumb these depths…still, I am new to the patent agent area so probably missing something……
Benny
March 24, 2016 09:31 am
Concerned,
When you spend millions developing new technologies, I can think of no more valuable way to spend my time than blocking a competitors patent which could potentially prevent me from taking my product to the market and seeing a return on investment. I mention this from the perspective of R&D, not from the perspective of a patent attorney who has little to lose. So, yes, big companies have every incentive to invest their time and money in shooting down competing patents – it is invariably cheaper than re-design, licensing, or litigation.
If you don’t think this will happen, it’s only because you don’t read the third party submissions in file wrappers. It happens, it just doesn’t happen enough.
Concerned
March 24, 2016 09:10 am
Benny @24
So big companies are going to have their experienced product development engineers monitor USPTO (and every other jurisdiction?) applications once they are published in order to submit prior art to the examiner? I think this is what you are saying. I don’t think this would happen at minimum because a) these companies could then be willfully infringing on patents in the future, and b) they likely have more valuable ways to spend their time. If you say next that it will just be the anonymous public providing the free service, then I think you should see what crowd sourcing does in these situations. you get a mountain of low SNR data/art that becomes a very time consuming job to sort through where that same expert, my earlier comments alluded to, is needed.
Benny
March 24, 2016 07:55 am
Concerned,
THe USPTO doesn’t have to “hire” experienced scientists and engineers. It can obtain their services for free by proactively seeking input from experts working in specific fields related to the patent under examination (in real terms, this means the applicants’ competitors). Proactive means reaching out to these people and not waiting submissively for third part observations.
Concerned
March 24, 2016 07:45 am
Let’s have a little fun with this one. I think the article indirectly is raising the question of examiners skills and capabilities versus the PTAB members skills and capabilities. So let’s compare these two groups because, IMHO, it’s like comparing a team of enlisted privates to a team of Navy Seals. We can further the analogy with the weapons each team is provided. Maybe the examiners are provided basic tools for weapons like gun powder and lead, while perhaps PTAB members get state of the art weapons and support teams. Clearly the PTAB is “supported” by expert plaintiffs with unlimited(?) budgets to search high and low for the best possible prior art weapons. And the support the examiners are provided? Well maybe there on a suicide mission.

Ok, so maybe this analogy thing is a bit extreme, but if we want to get back to reality and ask how can the USPTO produce a better quality product? Then maybe this silly military analogy provides some solutions. For example, can the USPTO get some former Navy Seals to work as examiners? Can the USPTO provide better training for examiners and provide them better tools with which to fight? Can the USPTO hire experienced scientists and engineers that have deep knowledge in there given technical areas to be examiners? Can the USPTO work with DARPA to fund a project to develop machine learning tools to automate the search for prior art? Anyway you see where I am going. I know this will raise the cost of getting a patent, but isn’t it worth it when we consider how important patents are to the US innovation engine?

OK, now fire away!
Benny
March 24, 2016 07:36 am
The PTAB finds fault with 80% of the cases referred to them, not 80% of total patents issued, and it stands to reason that most of the patents up for review will have some problem. (Bemused at 1, just to correct your statement)
Examiners do sometimes issue patents in face of novelty or obviousness issues which didn’t turn up in their brief searches, but what is their incentive to do a better job? If one of those patents subsequently forces a small business to close, with the loss of 15-20 jobs, that’s hardly likely to interrupt the examiners sleep at night.
Still yet another anonymous
March 24, 2016 06:25 am
From a Yurpeen point of view, working in the field of chemistry, I am constantly astounded by the ineptitude of many US Examiners. While there are many good and conscientious ones, there are also many who seems to have been selected on the basis of a unique combination of stupidity, laziness, incompetence and downright dishonesty. I frequently shake my head in bewilderment at some of the objections, knowing that the Examiner couldn’t possibly have reached that conclusion if s/he’d read and understood the stuff properly. In some cases, the standard of examination approaches that of Pakistan (does the USPTO recruit from there, by any chance?). The EPO has its moments, but nothing like this bad. Perhaps the concept of the Examining Division (3 Examiners, one who does the actual examining and the other two sign off on it) is a good corrective against complete nonsense.
angry dude
March 24, 2016 12:18 am
I don’t play those games anymore, but I used to read office actions in tech fields related to my patent (digital signal processing of speech, video etc.)

My impression in 90% of cases was: the examiner responded to a wrong patent application – complete misunderstanding of the purpose and substance of invention, if any…
Patent attorneys take some blame for this too…
Econ 101
March 23, 2016 10:59 pm
I don’t understand how people can complain about poor patent quality while pretending that quality can somehow be increased without any cost whatsoever, or doing even a basic cost-benefit analysis.

All of the measures proposed for increasing patent quality are costly. It’s possible to examine every application with the same level of scrutiny that goes into an IPR. But then the examination of every application would cost the same as an IPR. Most of the applications I look at aren’t even worth the micro entity filing fees, let alone the cost of an IPR. The fact is that if only 2700 issued patents were worth filing an IPR, relative to the number of patents that issued, that’s pretty good evidence that the current strategy of “issue shoddy patents inexpensively on the first pass and then do a better review for those that are actually worth the additional examination cost” is cost-effectively optimal, even though it doesn’t play well from a PR standpoint. “Fail early and fail often” sounds bad, but it works really well in practice.
staff
March 23, 2016 09:39 pm
‘I personally believe the far larger problem facing the Patent Office is that some patent examiners refuse to allow any patents at all’

Inventors completely agree!

Ask seasoned inventors and they’ll tell you the problem with the PTO is not the patents they issue, but those they don’t. To them the PTO has become a tool for large multinational infringers. Their response to being taken to task for invention theft is bamboozle or buy PTO officials into making it impossible for inventors and small entities to obtain their patents. No patents=no patent suits. Inventors will tell you the PTO has been complicit. They have lost all confidence in the PTO and the patent system as is irrefutable based on how small entity patent applications have crashed.

For our position and the changes we advocate, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
or, contact us at [email protected]
Curious
March 23, 2016 07:44 pm
The USPTO puts out plenty of noise. What has the USPTO actually done to reign in applicants during ex parte examination?
They attempted many rule makings in the Dudas era to do exactly that. Fortunately, the USPTO doesn’t have substantive law making authority. Do you know what is the EASIEST way to “reign in” overbroad claims? –> Good searches and quality prior art. Do you know who are (or at least should be) the experts in finding prior art? –> The Patent Office. Find (and apply) good prior art, and the alleged issue of “junk” patents should go away.

However, as I just mentioned above, no matter the quality of the patent, the person being sued will always allege that they patent upon which they are being sued is “junk” — it is part of the patent defendant’s playbook to do so.
Curious
March 23, 2016 07:35 pm
To listen to many tech CEOs [whose companies have been infringing thousands of patents for which they resent paying even a dime to practice], there has been an unchecked scourge on the patent system for the better part of the last generation [that have caused them to denigrate the patent system instead of support it].”
It all comes down to dollars and cents. These tech CEOs have made millions (even billions) of dollars off the backs of inventors for decades and don’t want to pay up. It is far easier (and less expensive) for them to tear down the patent system instead of pay up.

No one ever admits to being sued on a “quality” patent. While the patents they own may be great, anybody else’s patents are “junk.” They were probably saying the same things 100 years ago.
Edward Heller
March 23, 2016 06:58 pm
Michael, Gene, et al., ex parte examination can never explore patentability issues to the same degree as contested proceedings. That, more than anything else, perhaps explains the high percentages of institution decisions.
A Rational Person
March 23, 2016 06:35 pm
Michael@16

Plus, if the “problem” with patent quality was really caused by applicants, then one logical solution to increase patent quality would be to get rid of “first-to-file” which forces applicants to rush in preparing applications.

Of course, I have seen no discussion anywhere from the USPTO about any negative effects on the quality of applicants’ patent applications caused by the implementation of “first-to-file.”
Michael
March 23, 2016 06:16 pm
The patent reform process (and dismantling of the patent system) requires buy in, that is explicit compliance by at least some management and at the very least implicit compliance by examiners.

The problem created by the patent quality justification for reform is that the quality problems may be caused by poor management and/or defective examinations by low performing examiners. Identification of either as the cause could end the buy in required for continuation of patent reform.

Therefore, the obvious cause of low patent quality must be applicants. The beauty of placing blame on applicants is that they are a diverse group without a single voice and no one would believe them anyway because we all now know that inventors are patent trolls at heart.
Edward Heller
March 23, 2016 05:58 pm
Gene, small point, but the PTAB uses KSR with a vengeance Two references in the same field showing all elements, the patent owners loses — has no chance.

A lot of the patents that being IPRed were issued prior to KSR. But even since KSR, I am not sure the examining corps applies KSR with the vengeance of the PTAB.
Gene Quinn
March 23, 2016 05:56 pm
Me-

You said that the USPTO does not point fingers at applicants. I pointed out that you were wrong and you seem to fluff that off by saying that the USPTO pointing the finger at applicants is just noise. Be that as it may, the USPTO is clearly pointing fingers at applicants, and as they take the Administration position in advocating for more patent reform they are undercutting the patents they grant and the work product of their own examiners.

As far as reigning in applicants, would you suppose that rampant and unwarranted rejections would be an example of reigning in applicants?

-Gene
Night Writer
March 23, 2016 05:34 pm
I’ve said it before, but I will say it again. Searching is by far the number one way to improve quality. A good patent attorney will make the claims patentable over the cited art. If the examiner just gets the right art, quality would soar.
me
March 23, 2016 05:33 pm
“The USPTO has quite clearly been pointing fingers at applicants for some time.”

The USPTO puts out plenty of noise. What has the USPTO actually done to reign in applicants during ex parte examination?
Gene Quinn
March 23, 2016 05:26 pm
Me-

You say: “The PTO doesn’t point its finger at examiners for the same reason they don’t point their finger at applicants.”

I guess you haven’t been paying attention. The USPTO absolutely does point fingers at applicants. As the patent quality initiatives have unfolded over the last several years the Office has continually pointed the finger at applicants saying that applicants need to do better, file better applications and better claims.

In fact, at the IPO PTO event on March 15, 2016, Deputy USPTO Director Russ Slifer talked of the need for the patent community to do their part on quality and clarity by improving their work product.

The USPTO has quite clearly been pointing fingers at applicants for some time. That is why those of us who have been paying attention have repeatedly warned that patent quality can only work if it is treated as a two-way street.

-Gene
Gene Quinn
March 23, 2016 05:21 pm
Me-

Selection bias. Interesting. I guess you are right. The commercially valuable patents challenged at the PTAB are likely among the lowest quality patents issued by the PTO. The 98% of patents that provide little or no value whatsoever are likely of much higher quality. LOL.

-Gene
Michael
March 23, 2016 05:17 pm
In politics, the key to successfully advancing an agenda is a plausible and virtuous goal.

As you correctly point out Gene, the plausible and virtuous goal justifying the dismantling of the patent system is patent quality – how could anyone in their right mind oppose reforms that improve patent quality – it’s the right thing to do, right.

It is frustrating that more do not see patent reform for what it is – the gift that keeps on giving if your true agenda is to destroy the patent system rather than make it “better”.
me
March 23, 2016 05:11 pm
The PTO doesn’t point its finger at examiners for the same reason they don’t point their finger at applicants. Ultimately, they lack enough control to make a meaningful change.
Me
March 23, 2016 05:08 pm
“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.”

It’s also unclear why an intelligent person would pretend not to understand selection bias.
Gene Quinn
March 23, 2016 05:05 pm
Simon-

I agree with you. I’m not sure we can point fingers at examiners either. In fact, the only time I’ve really ever pointed fingers at examiners (and not by name) are when I’ve seen Art Units that allow virtually nothing, which is a real problem in my opinion.

I guess I’m just wondering why the PTO hasn’t pointed the finger at examiners? They seem to think the PTAB is doing excellent work, and as venue reform is now starting to be discussed the “legitimate patent rights” language is resurfacing. Either the problems with bad patents are blown out of proportion (which I think is the real case) or the PTO needs to start doing something to fix the front end where all these mistakes they see are being made.

-Gene
Night Writer
March 23, 2016 04:55 pm
It is bizarre. Lee acts as if she has nothing to do with it.
Simon Elliott
March 23, 2016 04:44 pm
Gene: I think its appropriate to ask the patent office why its two main branches come to such extraordinarily different results. I’m not so sure that we can point fingers at Examiners.
Gene Quinn
March 23, 2016 03:54 pm
Thanks AC.

I really don’t know what the answer is, but there is certainly a disconnect. Either there is a problem and the USPTO is ignoring the problem and refusing to assign blame where it belongs, or there is not a problem that is out of proportion to what you might expect from an entity that processes 600,000 files a year. I tend to think the language used is political speak aimed at maximizing the chance at getting more reform, but words have consequences.

-Gene
American Cowboy
March 23, 2016 03:48 pm
Good post, Gene.
One wonders if it is only the USPTO that issues so-called “illegitimate” patents, or does the EPO, JPO etc. do the same? If not, is there something to learn from them (I am sure Max will speak up with some helpful hints from Europe, but….)?

And, what is it that the critics of USPTO would have the US examiners do differently? Or are they just sitting in the peanut gallery grousing because they are not the owners of the patents they criticize and second-guess?
Bemused
March 23, 2016 03:44 pm
Out of curiosity, how does the patent examining corps feel about the fact that 80% of their work product is being deemed erroneous/subpar/just plain wrong by the PTAB? Are patent examiners viewing the PTAB as a politically created patent death squad that came into existence solely to invalidate large numbers of patents (regardless of the merits of these institution/invalidation decisions)? Or are patent examiners using the existence of the PTAB as insurance that if they do a shoddy job in the examination process, no harm no foul, because the PTAB will kill that patent down the road? I would hope that (most) patent examiners would have pride in their work and would disagree with the high kill rate at the PTAB. It would be interesting to know what the thinking is within the PTO’s examining corps.

Bemused