New Study: USPTO Drastically Lowered Its Standards In Approving Patents To Reduce Backlog

from the shockingly-under-shocking dept

The massive problems of the patent system really started getting renewed attention between 2002 and 2004 or so, highlighted by the publication of the book Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress, and What to Do About It by Adam Jaffe and Josh Lerner. By that point, the combination of two key events in the late 90s was clearly being felt on the patents system. First, and most importantly, was the impact of the State Street decision that announced to the world that the courts considered software and business method patents legal. Also important was the 1999 publication of Rembrandts in the Attic: Unlocking the Hidden Value of Patents by Kevin Rivette and David Kline, which led patent lawyers and tech companies alike to suddenly both ramp up their patenting, but also to look to sell off "unused" patents to companies (lawyers) who did nothing but threaten and sue over them. Suddenly, patent trolls became a big, big issue.

Around the time of the Jaffe and Lerner book, the USPTO seemed to actually take much of the criticism to heart. One big part of Jaffe and Lerner's criticism was the simple fact that patent examiners had significant incentives to approve patents, and almost none to reject patents. That is, the metrics by which they were measured included the rate of how many patent applications they processed. But, since there is no such thing as a truly final rejection of a patent, people would just keep asking the USPTO to look at their application again. Each time an examiner had to do this, their "rate" would decline, since they'd be spending even more time on the same old patent application. But approving a patent got it off your plate and let the court system sort out any mess. However, after the book was published, the USPTO actually seemed to pay attention and changed its internal incentives a bit to push for high quality approvals. Not surprisingly, this meant that the approval rate dropped. But, since there was more demand for bogus patents to sue over, more people appealed the rejections and the backlog grew.

Patent system lovers started whining about the "backlog," but what they were really pissed off about was the fact that their bogus patents weren't getting approved. Unfortunately, their message resonated with the new regime of the Obama administration, mainly Commerce Dept. boss, Gary Locke, and head of the USPTO, David Kappos. Back in 2010, we noted that the USPTO had shifted back to approving "pretty much anything" and had clearly decreased their quality standards in an effort to rush through the backlog. Not surprisingly, in stating this, we were attacked mercilessly by patent system supporters, who insisted that we were crazy, and the truth was that David Kappos had found some magic elixir that made all USPTO agents super efficient (or something like that -- their actual explanations were not much more coherent). No matter what, they insisted that it was entirely possible to massively ramp up the number of approvals, decrease the backlog and not decrease patent quality.

Needless to say, we've been skeptical that this was possible.

And now the data is in, suggesting we were absolutely right all along. A new study done by Chris Cotropia and Cecil Quillen of the University of Richmond and independent researcher Ogden Webster used information obtained via FOIA requests to delve into what was really going on in the patent office (link to a great summary of the research by Tim Lee). The key issue, is (once again) the fact that patents are never truly rejected in full, and the people applying for patents just keep on trying again and again until someone in the USPTO approves it. However, the USPTO, to hide some of this, counts some of those "rejections" that eventually get approved as "rejections" to artificially deflate the actual "approval rate" of patent applications.

When the researchers corrected for all of this, they found that the actual patent approval rate in 2012 was almost 90% of all patents eventually get approved. 90%! That's about where it was in 2004 and 2005 (as discussed above), though in 2001 it actually came close to 100%! However, as noted above, by the second half of 00's corrections had been put in place and the approval rate had declined to under 70% in 2009 -- meaning that the USPTO was actually rejecting bad patents. But over the past three years, we've shot right back up. And it's clear that if the approval rate is much higher, the USPTO is approving many, many more bad patents.

In fact, it's likely that the story is even worse than before. Back in 2004 and 2005 when the approval rates were similar, it was really before the public was aware of just how bad the patent troll problem was, so you had many fewer people trying to get their own bad patents to troll over. In the past five years or so that has changed quite a bit. So the number of applications has shot up massively as well. In 2004 there were 382,139 applications. By 2011 that had shot up by 50% to 576,763.

I don't think anyone thinks that we suddenly became 50% more inventive between 2004 and 2011. No, the truth is that people were suddenly flooding the USPTO with highly questionable patent applications on broad and vague concepts, hoping to get a lottery ticket to shake down actual innovators. And, the USPTO under David Kappos complied, granting nearly all of them. Incredible.

When Thomas Jefferson put together the first patent system -- after being quite skeptical that patents could actually be a good thing -- he was quite careful to note that patents should only be granted in the rarest of circumstances, since such a monopoly could do a lot more harm than good. And yet, today, we encourage tons of people to send in any old bogus idea, and the USPTO has turned into little more than a rubber stamp of approval, allowing patent holders to shake down tons of people and companies, knowing that many will pay up rather than fight, and then leaving the few cases where someone fights back to be handled by the courts (who seem ignorant of the game being played).

The end result is a true disaster for actual innovation and the economy. We should all be able to agree that bad patents are not a good thing. And the USPTO is, undoubtedly, approving tons of awful patents when its true approval rate is hovering around 90%.


Reader Comments (rss)

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    Akari Mizunashi (profile), Apr 9th, 2013 @ 6:37am

    Trying to change the Court of Public Opinion's going to be very tough. People grow up believing patents and copyrights are a good thing because, for many, they're never part of the more shady side of it.

    Most people know of "patents" by products, where "Patent Pending" or a number is visible, or advertising promotes how a "technology" is "patented", thus implying the product is the only one of its kind on the market.

    Patents have never been about protecting innovation, and I've yet to see anything to the contrary.

    What I do see, though, are many stories of how patents (you too, Mr. Thomas "I'll knife you in the back!" Edison, who used patents to control and limit, not innovate.

    Hey, why is it I see more of these stories than those of "With this patent, we were able to bring you [insert item here]"?

    Heh. I know the reason. It's too bad patent defenders, some of them pretending to be working for the public's best interest in Congress, do not.

     

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    Anonymous Coward, Apr 9th, 2013 @ 8:28am

    So if we push more through now, we'll have a lower backlog. But then we'll have to review more later and therefore create more work for ourselves.

    All cause we don't have the insight to HIRE MORE PEOPLE and charge a small fee to file to save money and cover costs...

     

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    Anonymous Coward, Apr 9th, 2013 @ 8:42am

    Yes, one files an application, and over time there is a good chance it may pass to issue. Of course, all of this ignores the fact that patent claims are continuously in a state of flux, and what is ultimately allowed can vary significantly from what was originally claimed.

    As for file, refile, etc., perhaps it bears mentioning that patent terms (20 years) are based upon the filing date of the original application. This is a significant change from the prior term of 17 years from the date of issue.

     

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      TheLastCzarnian (profile), Apr 9th, 2013 @ 8:59am

      Re:

      According to the patent examiners who did the AMA on Reddit, claims cannot be added or altered without submitting an entirely new patent. That's why you see every claim under the sun up front, at least in the initial filings.
      Doesn't make it any better. We still need to abolish all patents.

       

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        Anonymous Coward, Apr 9th, 2013 @ 10:38am

        Re: Re:

        You confuse the prosecution of a patent application with post-issuance requirements should changes to the claims, as issued, be sought. Claims are changed all the time during prosecution, with the only substantive limitation being that new claims cannot present "new matter", i.e., claim features that are not disclosed in the application as originally filed.

         

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Apr 9th, 2013 @ 8:52am

    Lawyers and grifters trying to get unearned income.

    Root cause revealed in boldface: "State Street decision that announced to the world that the courts considered software and business method patents legal. Also important was the 1999 publication of Rembrandts in the Attic: Unlocking the Hidden Value of Patents by Kevin Rivette and David Kline, which led patent lawyers and tech companies alike to suddenly both ramp up their patenting, but also to look to sell off "unused" patents to companies (lawyers) who did nothing but threaten and sue over them."

    There are only a few essentials to analyzing any economic problem: Rich people, Privilege, Lawyers, and Unearned Income.

    Mike never actually gets to causes, though, just complains endlessly about the bad effects.

     

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      TheLastCzarnian (profile), Apr 9th, 2013 @ 9:02am

      Re: Lawyers and grifters trying to get unearned income.

      If had left out the "Mike" dig, I'd agree with you 100%.

      Chalk me up for 95%.

       

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      crade (profile), Apr 9th, 2013 @ 9:23am

      Re: Lawyers and grifters trying to get unearned income.

      The things you mention are the effects.
      The cause is going to be the legal system.
      cause: Legal system is bad
      effect: people take advantage of it in bad ways that aren't against the law

       

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        yaga (profile), Apr 9th, 2013 @ 11:01am

        Re: Re: Lawyers and grifters trying to get unearned income.

        The legal system isn't the cause. The cause is all the laws that deal with patents AND the way the Secretary of Commerce and his or her head of the USPTO feel those laws need to be be enforced or ignored.

         

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          Anonymous Coward, Apr 9th, 2013 @ 11:25am

          Re: Re: Re: Lawyers and grifters trying to get unearned income.

          The legal system IS the way the laws are enforced or ignored...

           

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    Anonymous Coward, Apr 9th, 2013 @ 8:56am

    "New Study: USPTO Drastically Lowered Its Standards In Approving Patents To Reduce Backlog"

    You are very wrong mike, again, as per usual. Your argument makes the faulty assumption that the USPTO had standards to begin with. If they didn't then how could they possibly lower their standards? What evidence do you have to show that the USPTO even had standards in the first place?

     

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    Anonymous Coward, Apr 9th, 2013 @ 8:56am

    I've filed for a few myself on content protection through encrypted data injection.

    Don't take that the wrong way because it will never be used EVER unless it's to stop some asshole company from doing it and extorting people.

    I file many as I can these days so I can maybe one day stop someone from ruining peoples lives. I rather be broke than some asshole that is out to make a living by suing people for a product that will never exist.

    I encourage you all to file patents for methods because the USPTO will pretty much give one on anything you can think of with a shitty diagram.

     

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      John Fenderson (profile), Apr 9th, 2013 @ 9:26am

      Re:

      Don't take that the wrong way because it will never be used EVER unless it's to stop some asshole company from doing it and extorting people.


      You can't be sure of that. You may become bankrupt one day and see your patents sold off, for example.

      I file many as I can these days so I can maybe one day stop someone from ruining peoples lives


      A better way of accomplishing the same thing is take what you would have patented and publicly document every last detail of it, thus making it solid prior art. You can do this is a way that gets you paid, as well -- perhaps a magazine article, or as part of a marketing campaign for a product you're selling.

       

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      Jake, Apr 13th, 2013 @ 5:13pm

      Re:

      I don't recommend paying the renewal fees on these patents.

       

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    artp (profile), Apr 9th, 2013 @ 9:01am

    A money saving proposition

    So what you're saying is that we could save large amounts of money by just rubber-stamping every patent application that comes through the USPTO and laying off all the employees, including David Kappos' successor?

    Some CongressCritter is going to HAVE to jump on this opportunity!

     

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    Anonymous Coward, Apr 9th, 2013 @ 9:05am

    I've finally realized that I must be a sadist.

    Since so many seem to think that patents are such great things and we can never have enough, I say that the solution is that the USPTO get out of the decision/evaluation side of the business and become just the archivist. They should approved 100% of all patent applications the moment they receive them; don't even need to look at them. Someone thinks their idea is being violated take it up in court. And just to make sure we don't discriminate, if you get a patent in the US, you can take anyone in the world to court, if you feel they are illegally using your patent. Once litigation is filed, there is no settlement allowed. The case must go forward. The loser pays all of the legal fees. If one of the parties is outside of the US and decline to participate they are immediately embargoed from all business with any company that does business in the US (any company that breaks an embargo will also find itself being embargoed).

    This would be the ultimate in careful what you wish for, because I am certain that this would finally break the system (and most likely the entire country) in just a few weeks (maybe days).

    Maybe I'm just having a bad day, but I seriously want to take some of the people responsible for our current political and business environments and hang them upside down and use them like a pinata. They would get a whack from a Louisville Slugger for every moronic answer they give to the questions I would ask.

     

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    Anonymous Coward, Apr 9th, 2013 @ 9:19am

    i'll bet the standards weren't lowered just to clear the backlog. they were also lowered so as to have more leverage against other countries that were continuously being threatened with sanctions or worse, if they didn't ramp up their laws to match those of the USA! look at what has just happened over drug rules in India. if the USA company had had it's way, the cancer drugs it produced would still be made for a pittance in that country, but sold at such an inflated price that 99% of the population of that country and others, would not be able to afford it, thus leading to premature deaths. as it can now be made locally at a fraction of the cost, more will survive. this is a typical example of how USA companies are so worried about profit, they dont give a flying toss about how many lives are lost due to that attitude. i bet it would be a different story if things were reversed. there would be all hell let loose if the USA weren't allowed to get a drug on the cheap if it was produced elsewhere and the price meant thousands dying because they couldn't afford it! there would be computer hacking, seal team infiltrations and anything else that was needed! the USA is fine when it is the aggressor but cant handle it when they dont get their own way!!

     

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    crade (profile), Apr 9th, 2013 @ 9:20am

    Don't they realize if applicants actually thought they would do their job right, they might not flood them with garbage applications and they could reduce their backlog that way?

     

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    JarHead, Apr 9th, 2013 @ 11:37am

    so you had many fewer people trying to get their own bad patents to troll over.

    Umm, Mike, I actually struggling to grasp the emphasized words. "many fewer"? Is it part of English structure IDK about?

     

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      artp (profile), Apr 10th, 2013 @ 12:44pm

      Re:

      Translation: a lot less, far smaller number

      English is SUCH a bastardized language. We can make words mean anything without using tonal inflections like Chinese does.

       

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    Gene Cavanaugh (profile), Apr 10th, 2013 @ 9:57pm

    Bad patents

    It is actually MUCH worse than that!
    Under Kappos, the rule was that approval depended on how much you paid.
    So, a small entity with a genuine innovation, even an innovation that would benefit the public, but not much money, would be automatically rejected, whereas a big spender with total trash could get a patent (in all fairness, the worse the patent, the more money the patentee had to pay - but small entities were below the threshold, and would ALWAYS be rejected.

     

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      Anonymous Coward, Apr 11th, 2013 @ 7:16pm

      Re: Bad patents

      If one is inclined to make assertions such as here, then one should provide reliable and relevant evidence supporting those assertions.

       

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    staff, Apr 14th, 2013 @ 10:00am

    more dissembling by Masnick

    'Adam Jaffe and Josh Lerner'

    The word on the street is they are paid puppets of some of the world's biggest invention thieves.

    These are mere dissemblings by huge multinational thieves and their paid puppets -some in Congress, the White House and elsewhere in the federal government. They have already damaged the US patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of patents? Think again...or just think.

    Most important for many is what the patent system does for the US economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system we force inventors underground like Stradivarius and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our children and communities. Who knows who the next Alexander Graham Bell will be. It could be your son or daughter. It could be you -no, not you Masnick. To kill or weaken the patent system is to kill their futures.

    For the truth, please see http://www.truereform.piausa.org/
    https://www.facebook.com/pi.ausa.5
    http://piausa.wordpress.com/
    http://www.hoover.org/publications/defining-ideas/article/142741
    http://cpip.gmu.edu/2013/03/15/t he-shield-act-when-bad-economic-studies-make-bad-laws/

     

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    PATRICK HARRISON, Oct 10th, 2013 @ 8:15am

    Patent Rejection

    I put in a patent application for a new way to play Texas Holdem and it was rejected based on a 2010 Supreme Court decision (BILSKI v. KAPPOS) about business management method which has nothing to do with how to play a card game.

    When I called to discuss this and before they realized I had used an attorney (and therefore would need to recuse my attorney for them to talk with me directly), two agents, one being the patent examiner's supervisor, told me that my patent should not have been rejected.

    But I could not afford to go any further even though my attorney was going to allow me to pay $100. monthly until his $600-$800 fee for appeal plus patent fees (I could not even afford the attorney recuse fee).

    But now reading your statement "But, since there is no such thing as a truly final rejection of a patent, people would just keep asking the USPTO to look at their application again." makes me feel that I still can fight the rejection of my patent when I've saved enough to do so.

    I did a google search a couple of weeks ago before my pc crashed and found a person who wrote an article that the USPTO was becoming like Soc Security Disability in that they automatically deny patents the first time around to weed out serious filers and possibly gain more fees for appeal, etc.

    But now I can't find that article. Do you know about that?

     

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    Truth Seeker, Mar 25th, 2014 @ 7:38pm

    Patent standards and rejections

    Actually if anyone files "pro se" their chances of getting a good patent are almost zero and their chance of having heir application totally denied, immediately, are very high (even if they have a good invention). The USPTO awards credit to examiners when they complete thier "patent examination" and dispose of an application, either by rejection, or allowance. That allows (and even encourages) some examiners to make "quick work" of pro se applications (should they wish to). If you could get credit for either quickly rejecting an application in one day, or less, or having to work on it for one week, which way would you go? After all, these people are bureaucrats (not brain surgeons) ... they don't lose sleep over these decisions. But, they are also required to maintain certain ratios of rejections to allowances, so they are more likely to reject pro se applications (since that is the easiest and quickest way to go), but then allow many applications filed by patent professionals (since they are much harder to pull a fast one on). I believe many very good patents get rejected by the PTO, simply because they have been filed pro se. It's not true that it's ever easy to get a good patent from the PTO, whether you file independently, or using an attorney. It can take years to be successful.

     

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