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. icon
    Mike (profile), 19 Mar 2008 @ 9:57am

    Re: EFF

    put effort into developing innovative technologies to help us better compete with the Chinese.

    I would, but I'm afraid I'd get sued by a patent hoarder for infringement.

    But then many of those companies can no longer innovate or were never truly very good at, relying more on superior capitol and antitrust behavior as we read about nowadays so often.

    The only antitrust behavior I've seen lately is abusing a patent monopoly to stop others from innovating.

    As to the PTO statistics you cite, not so fast. Just because claims are narrower, does not mean the patentee no longer owns patents covering meaningful or even essential technologies.

    I didn't say otherwise.

    Sometimes the claims are broader than needed as a practical matter so narrowing may not have any bearing on protection.

    Again, I didn't say otherwise. But the very fact that the claims needed to be narrowed certainly suggests the PTO screwed up in the first place -- which was the key point.

    Your cries of a “substantial effect” are unsupported without further data and you fail to cite any instance where these 3rd party submissions have proved fruitful.

    If you want me to list a few, that's easy enough... But, it doesn't change the key point. I like how you set up a strawman that wasn't even the key point of this discussion to knock it down.

    The point remains: the PTO gets it wrong often enough.

    As for the EFF, who funds them?

    Ah, casting aspersions on the EFF. I don't think anyone who has seen what the EFF has done over the years could seriously suggest that the group is compromised in any way. But, you know, if you have no other arguments...

    Could it be that they are funded by the same corporate raiders who are so often found guilty of stealing others innovations?

    You cannot "steal" innovation, but that's a different discussion for a different time.

    Are they truly an advocacy group, or just paid assassins?

    And with that you lose all credibility. The EFF has shown for years that they do not follow a corporate agenda.

    Are these really 3rd party submissions anyway? They should come out publicly and release the names of their principal funding sources, or sit down and shut up.

    Ah, and as a last ditch effort, blame the messenger.

    Impressive effort, but not very compelling.

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