How To Make The Patent System Even Worse: Make Patent Validity Incontestable

from the are-these-people-serious? dept

There are, as we've noted over the years, all sorts of serious problems with the patent system, especially in how it acts as a toll on innovation, and creates seriously backwards incentives (i.e., you're often better off not developing a product at all, but waiting for someone else to do so, so you can sue them). One of the many problems with the system is the famed "presumption of validity." The argument here is that once a patent is granted, everyone has to presume it's valid. This makes little common sense when you think about it. A patent is generally examined by someone for just a few days' worth of time before they determine whether or not the applicant deserves a multi-year monopoly on the invention. While the examiners may be quite knowledgeable, no single person can accurately understand either all of the relevant prior art on the subject or what is considered obvious to those skilled in the art. In other words, it's common for mistakes to be made. In fact, even the USPTO seems to recognize that it's pretty bad about getting patents right. If you look at the stats, you discover that 92% of re-exam requests are granted, and 3 out of every 4 such re-exams result in adjustments or total rejections. In other words, on the patents that are being asserted regularly (which are the ones where re-exams are requested), the majority of the time, the Patent Office admits it got the original patent wrong.

That would certainly suggest that it's not wise to consider a granted patent "valid."

In fact, that's much of what the current Microsoft v. i4i case -- which is on the Supreme Court docket -- is about. That lawsuit is to determine whether or not the standard used to judge patent validity is too high.

So it seems almost laughable, then, to hear a suggestion that things should move in the other direction. However, some of the patent systems loudest defenders are now proposing that patents should become incontestable after a period of five years, meaning that no one would be able to contest the validity of those patents, even if the evidence suggests the patent was granted in error. It's hard to fathom how this possibly makes sense. The only explanation given is that it would make patents more valuable -- as if they weren't valuable enough already. But, of course, that's laughable. It's based on either confusion about economics or the patent system itself. The point of the patent system is to "promote the progress." Focusing on making patents more valuable suggests these people believe the point of the patent system is to get more patents. But the two things are not the same. Making patents incontestable, especially in cases when a patent is not valid does not promote the progress. It does the opposite.

Filed Under: patents, validity


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  1. identicon
    Anonymous Coward, 5 Jan 2011 @ 8:25am

    Re: Re:

    "Um. Do you not realize this proves my point. It's easy to get a reexam granted BECAUSE patent examiners screwed up the first time."

    The standard for the grant of a reexamination request is the presentation a printed publication never previously considered and which raises a substantial new question pertaining to patentability of one or more claims. Given that potentially pertinent printed publications can easily exist outside the United States, or that a printed publication can be found in well out of the ordinary art areas typically relied upon by persons of ordinary skill in the art to which an invention pertains, it should come as no great surprise that searches for relevant prior art in the first instance might not happen to stumble across them. This is hardly a damning screwup, unless one defines screwup as failing to find everything, clearly relevant or potentially relevant, the very first time around. This is an impossible task.

    Merely by way of example, I have previously found and applied against issued patents printed publications that only existed deep within the bowels of DOD classified vaults, locations as to which only a very few with appropriate security clearances even have access. Is it fair to say that the USPTO examiner and the patent application each screwed up because they did not originally consider printed publications for which they had no means at hand to learn such publications even existed? I think not.

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