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 @ 12:21am

    Re: Re: Re: Surmising

    Well, the way I see it is that if a company has an idea but is too afriad that they won't be able to hold the market for long, then applying for a patent will hold off competition until they get their feet under them (This obviously is directed towards smaller companies).

    Allowing the patent to be granted is the source of incentive for the company to go ahead, and then after a review by a third party, the technology gets opened to other companies to get started and the subesquent competition is always good for the consumer.


    Unfortunately, the research shows little to no support of the idea that this kind of incentive works. There's almost no evidence that products wouldn't get made in the absence of patent protection (with the possible exception in the pharmaceutical industry). When there's a market demand, the market figures out a way to supply that demand -- with or without monopoly protection. So it's difficult to justify this.

    Not to mention the length of time between patent application and patent granting (especially these days). For many products, you're already on the market "patent pending," so not getting a patent doesn't change the likelihood of the product going to market. People don't sit and wait the 3 years for a patent to issue. They work to get the product out in the market.

    Its an idealisic view, I know, but I like to think it would work most of the time. But, as you noted above Mike, the 3rd party review almost always works, so why not let the patent go ahead?

    You're not taking into account the massive societal costs of doing it that way. You now have other firms that cannot/will not invest in innovation in that area, or firms who have to waste millions of dollars fighting bogus patent infringement lawsuits. Not to mention the length of time a typical patent review takes... It's a tremendous societal waste for almost no benefit.

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