“The decades-long patent quality debate has been confusing at best, with some arguing that the term has been leveraged as a way of undermining U.S. patents to the advantage of Big Tech companies and China.”
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.”
Comptroller General Report
The text of the bill requires that the Comptroller General of the United States, head of the Government Accountability Office (GAO), submit to the IP Subcommittees of both the U.S. Senate and House of Representatives a report within one year of enactment of the bill with recommendations on how to improve the patent examination process and overall quality of issued patents. The bill asks that the report focus in particular on improving the examination process with respect to application of Sections 101, 102, 103 and 112; what constitutes a thorough patent search by an examiner; that it “rigorously evaluate” past attempts by the Office to improve patent quality and explain what did and did not work, and why.
The legislation also asks the Comptroller General to assess whether the U.S. Patent and Trademark Office (USPTO) needs to implement clear guidelines on what constitutes patent quality and establish clear, publicly accessible patent quality metrics.
The Office presently hosts a patent quality metrics page on its website.
The bill further requires that the report study whether the Office needs to give examiners more time for examination and whether examiner interviews need to be recorded and placed in the record.
The bill invokes the model used by the USPTO’s trademarks division to investigate suspicions of fraud on the Office in the application process and calls for the Comptroller to make recommendations regarding examiner training.
USPTO Guidance and Director’s Report
Once the report has been submitted, the bill would mandate that the USPTO Director develop guidance for examiners as per the report. Two years after the bill is enacted, the Director is tasked with soliciting public comment and submitting a report explaining how the Office will improve examiner technical training in emerging technologies; the status of IT capabilities with respect to examination of both patents and trademarks, Patent Trial and Appeal Board and Trademark Trial and Appeal Board proceedings, and recordation of patent assignments.
Finally, the bill mandates that the Director’s report account for the use of advanced data science analytics to improve examination, including to ensure that patent claims have support in the specification, to detect common errors, and to ensure assignment to the best examiner. It also requires a five-year plan for the use of such analytics and how such uses will be made publicly available.
Does it Mean Anything?
The decades-long patent quality debate has been confusing at best, with some arguing that the term has been leveraged as a way of undermining U.S. patents to the advantage of Big Tech companies and China.
“If the United States is going to continue to be the world’s leading innovation economy, then we have to first make sure our patent system is strong and instills confidence,” said Tillis. “We only have strong patents when those patents are of the highest quality and meet all the requirements of patentability.
Leahy commented: “This bill follows up on our hearing last year on patent quality, which put a spotlight on the fact that many U.S. patents represent brilliant inventions and drive our economy. Unfortunately though, some are issued by mistake and can cause great expense for unsuspecting Americans and small businesses.”
During the patent quality hearing held last June, Leahy invoked several old examples of “bad patents” being asserted by patent trolls, which Senator Chris Coons warned against. Coons said, “I do want to make sure that the pursuit of patent quality as such is not used as an excuse to weaken patent enforcement protections for all patent owners.”
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