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. identicon
    Willton, 10 May 2010 @ 7:35pm

    Re: Re: where to put those pesky lawsuits

    So, has the USPTO ever been sued? I've never heard this as a concern before. I can understand the argument that their motivated by the cash that comes in from applications, but I would think they're quite insulated from the possibility of being sued. If you submit a patent application and it's rejected a number of times, I would think (hope) that the buck stops at the USPTO, otherwise the court system really would be clogged up with cases against the USPTO instead of with patentholders against other companies.

    Every time an applicant appeals a rejection from an Examiner, the case goes before the Board of Patent Appeals and Interferences ("BPAI") at the USPTO. If the BPAI agrees with the Examiner, the applicant can appeal that decision to the Court of Appeals for the Federal Circuit. And if the applicant gets an adverse decision there, there is always the opportunity for the applicant to have his case heard by the Supreme Court of the United States. That's how Bilski v. Kappos made it to SCOTUS's docket.

    Every time the applicant appeals such a decision, the USPTO is being sued.

    I honest don't know how this works now, but it would seem to me that the USPTO would have to win just one lawsuit that confirms them as the final arbiter of what gets a patent and that would be it, not individual lawsuits over every rejected patent.

    You apparently don't how it works, because anyone remotely acquainted with the patent system knows that the applicant's right to appeal an adverse decision by the USPTO is statutory (i.e., it was provided in a law passed by Congress). If the applicant did not have such a right, it would give the USPTO the freedom to be arbitrary and capricious in rejecting patent applications without judicial oversight.

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