USPTO Ramping Up Patent Approvals

from the this-is-not-a-good-thing dept

A bunch of folks sent over a silly and somewhat uninformed article claiming that the US Patent Office was aiming to block small businesses from filing patents by increasing the costs of patent applications so that only large companies could afford it. It's not worth wasting much time on that article, other than to say it's just wrong. The fee plans include an option to let small businesses and individual inventors qualify for cheaper fees -- which is actually something that I think is a problem. And, more importantly, the fee for filing a patent is a tiny fraction of the cost of getting a patent. The argument that the USPTO is looking to make it more difficult for small businesses to file for patents is incredibly uninformed. In fact, lately, the USPTO has been bending over backwards to make things easier for small businesses.

But, the article does mention, correctly, that the USPTO has been on a mission to decrease the amount of time it takes to review a patent. Now, the USPTO has been saying this for quite some time, and usually it's followed by talk of plans to hire more patent examiners. Of course, that's the wrong way to go about things. That's because the patent system doesn't scale, while the rate of innovation actually is scaling. The real way to decrease the time it takes to review a patent is to stop approving bogus patents. Seriously.

Unfortunately, it looks like the new USPTO, under David Kappos, may be going in the opposite direction.

In the late 90s into the early 2000s, the rate of patent approvals was quite high, leading to more patents being filed and more questionable lawsuits. After Lerner and Jaffe published their book Innovation and its Discontents, which highlighted the massive problems of the patent system -- including that examiners had more incentives to approve patents than deny them, the USPTO finally began to shift a little, and it actually began to get more difficult for patent approvals. Add to that a series of miraculously smart Supreme Court rulings on patent issues (with KSR's decision redefining how "obviousness" is measured being a small, but useful, step in the right direction), suddenly patent approval ratings dropped -- dropping from around 70% to around 50% in just a few years.

However, is all that being reversed? Patently-O recently pointed out that the USPTO appears to be approving patents at a much higher rate again, and there's lots of speculation as to why. Many assume that, as was noted in the original link above, Kappos and his boss, Commerce Secretary Gary Locke, are focused on reducing backlog. And so the incentives and pressure within the USPTO is to just approve patents to get them out of the way. If true, this is incredibly short-sighted and will backfire. The end result is that more bad patents get approved, and when bad patents get approved it increases bad lawsuits, followed by bad rulings for huge sums of money... leading more people to file for more bad patents hoping to win the same kind of jackpot.

There is, also, the more cynical argument, which is that since the USPTO is funded by fees, and as it is always looking to increase its budget (what organization doesn't?), it approves more patents to get more applications in, knowing that it can get more money that way. I'd like to hope this isn't the case, but either way, the pace of approvals is troubling.

Filed Under: approvals, backlog, patents


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  1. icon
    Adam Wasserman (profile), 10 May 2010 @ 3:40pm

    where to put those pesky lawsuits

    Mike wrote:
    "The real way to decrease the time it takes to review a patent is to stop approving bogus patents."

    and Hulser wrote:
    "As I alluded to in another post, they don't even seem to be considering the option of just rejecting more applications."

    Well, as I have pointed out before (but so directly): in our litigious society and entitlement culture, lawsuits over patents are inevitable because everyone wants a piece of a monopoly so they can get rich without really working.

    Suing someone is the next best thing to a patent because it still does not involve anything real work for the plaintif, the lawyers do all the work, and if there is the possibility of a sweet monopoly at the end of the rainbow there will be plenty of folks willing to roll the dice.

    I maintain that the USPTO can do nothing to stem the tide of lawsuits as long as the prospect of easy street exists.

    What the USPTO can influence however, is *who* gets sued. If they start rejecting patents it will be the USPTO that gets sued.

    If they approve patents willy nilly than it is everyone else that gets sued.

    And as far as any danger to the USPTO themselves because of causing all of these lawsuits through irresponsible patent approval... if I were they I would not be worrying. If they were going to get into any trouble for it it would have been quite a while ago.

    Presidents come an go, but their IP maximalist overlords look to me like they are good for another decade or so before the bubble bursts.

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