Two separate stories concerning statements from those in charge of the patent system suggest that the new administration isn't about to help fix the problems in the patent system, but is eagerly looking to make them worse. It starts with new USPTO Director David Kappos, who some thought would recognize problems with the patent system from his years dealing with those problems at IBM. While IBM is a massive patent stockpiler, over the past few years it's at least indicated some recognition that the system is broken. But... his recent remarks
suggest he wants to reverse the trend of patent examiners rejecting so many patents:
On the subject of quality, there has been speculation in the IP community that examiners are being encouraged to reject applications because a lower allowance rate equals higher quality. Let's be clear: patent quality does not equal rejection.
I don't think I could disagree any more strongly. Patent quality absolutely means keeping out bad patents -- something the USPTO has failed at for years. Considering the massive monopoly power handed out by a patent, one should only be granted in the rarest of cases -- when real quality, and a real need for the patent can be shown. After a lot of criticism about the way that patent system was run for the past few decades (where "when in doubt, approve" was the norm) since about 2004, the USPTO has finally started to become more aggressive in rejecting patents. Having the USPTO switch back in the other direction would be a massive mistake.
Meanwhile, an even more worrisome issue is that Kappos' boss, Gary Locke, the US Secretary of Commerce, seems to buy into all sorts of disproved myths about the patent system
. It doesn't help that the journalists at the Milwaukee Journal Sentinel seem to believe them too. Check out this quote, for example:
And economists concur that patents are the best known indicator of innovation.
Um, actually, a rather
do not concur
at all on that statement (and note that two of those are Nobel Laureates), and can stack up study
that suggests the opposite. But why let facts get in the way of an old myth?
The real problem, which becomes evident in reading the article is that since the USPTO is funded based on patent application fees, it has every incentive in the world, as an institution, to approve more patents. The more patents it approves, the more applications it gets, which means more money as well. This isn't to say that the individual examiners don't take their jobs seriously, and approve stuff just to get the fees. Obviously, they're not directly a part of that calculus. But the incentives put in place at higher levels are to bring in more fees to better fund the USPTO. Of course, if it functioned as originally intended, and only narrowly approved patents that were clearly shown to be a new and non-obvious invention that promoted the progress, the staff and the budget
could be cut down significantly. But since when has a gov't agency ever willingly looked for ways to cut its own budget?