Patent Re-Exams Improve Patent Quality; So Why Does Congress Want To Limit Them?

from the questions-that-should-be-answered dept

I've explained why I'm not comfortable with the proposed patent reform effort, as there are a number of changes in it that could potentially make the system much worse. One example, as the EFF highlighted last month, was that it would unnecessarily limit the ability of third parties to request a re-exam of a patent. Now the EFF is looking through some statistics and noting some rather shocking numbers about third-party-initiated patent re-exams. Contrary to what some supporters of the patent system claim, it appears that a large majority of these requests aren't just legitimate requests, but serve to have a patent's claims limited or rejected entirely. 92% of re-exam requests are granted, with 3 out of every 4 exams resulting in adjustments (or total rejections) of the patents. In other words, clearly, the process helps improve patent quality. So why would Congress want to remove that part?

However, a much bigger question should probably be: why is the Patent Office so bad at getting things right the first time around? If so many patents end up needing to be corrected on re-exam, it certainly sounds like patent examiners aren't doing a very good job. Given the already massive economic costs that result from bad patents, this should be a major concern.
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Filed Under: patent reform, patents, re-exam, uspto


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  1. identicon
    Dan Lewis, 19 Mar 2008 @ 8:22am

    Spotlight fallacy

    "92% of re-exam requests are granted, with 3 out of every 4 exams resulting in adjustments (or total rejections) of the patents. In other words, clearly, the process helps improve patent quality. So why would Congress want to remove that part?

    However, a much bigger question should probably be: why is the Patent Office so bad at getting things right the first time around? If so many patents end up needing to be corrected on re-exam, it certainly sounds like patent examiners aren't doing a very good job."


    Uh, no, there is a bias here called the spotlight fallacy. Briefly, you can't estimate the performance of the patent office for all cases by measuring their performance in the worst cases.

    92% is the probability that a patent will be re-examined, given that a re-exam has been requested. 3 out of 4 is the probability that a patent will be adjusted or rejected given that a re-exam has been granted.

    You'd also need the probability that a patent re-exam is requested given that said patent was granted in the first place if you want to criticize the overturn rate of the patent examiners. If that data is out there it would vastly improve your point.

    On the other hand, it might turn out that the rate of bad patents issued, like the crime rate, is overexaggerated by media coverage. You never hear about the crime-free areas, you never hear about the good patents, because they are not newsworthy.

    Don't get me wrong, I think software and business method patents are extremely counterproductive, but I think the solution rests with the legislature rather than the patent examiner.

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