Why Do We Assume Patents Are Valid When Patent Office's Own Numbers Show They Get Things Wrong All The Time?

from the simple-questions dept

One of the bizarre things about the patent system is the "presumption of validity," in which a patent officially has to be presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on "inventions" for an extended period of time... based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office's own data shows that's simply not true. A friend pointed me to the USPTO's recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn't be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.

The document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the "presumption of validity" that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you'd think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I'd hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.

If the number was below 90%, I'd think the system was in trouble and needed some fixing. If it was below 70%, I'd think that we should be declaring the system a failure. If it was below 50%, I'd be questioning the entire basis of the patent system. So what is it?

Would you believe that only 22% of re-examined patents have all claims confirmed? 22%! That means that 78% of all patents that are granted a re-exam had serious problems with their original claims -- and remember, 92% of re-exam requests are granted. All these patents were initially approved and enjoyed the presumption of validity, which would may have cost companies millions (or more). This isn't just a failing grade. This is an epic disaster. It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected, but those numbers are little comfort when we're told that we need to presume all of the claims in all patents are perfectly valid.

Now, some might claim that this number is perfectly fine, because only bad patents get re-exam requests. In fact, you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that. Already, those who dislike patent re-exams are claiming that patent re-exams are abused with too many good patents getting re-examined. So it certainly appears that all sorts of patents get re-examined... and a very large percentage of them appear to turn out to have been mistakenly granted.

This highlights, in pretty stark contrast, just how broken and completely arbitrary the system is. For a system like this to be valid, it should be formalized and repeatable. It needs to be based on objective information, not the random subjective opinions of a particular examiner. Yet the data suggests that's exactly what's happening, meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, who haven't been shown to be even remotely consistent, and who have very little time to actually examine what it is they're granting monopolies over.

How does anyone consider that to be a reasonable system?

Filed Under: patents, re-exam, rejected, validity

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  1. icon
    Mike Masnick (profile), 20 Aug 2012 @ 10:33am

    Re: Re: Re:

    Let me throw a question your way. Do you ever tire of making broad generalizations on subjects with which you have no significant and substantive experience?

    I wouldn't know, but I will properly assume that the reference you are stating here refers to yourself.

    Please excuse me, but patents are issued based upon "evidence". If previously unknown "evidence" comes to the fore, then a re-look at the patent may be appropriate. To say a claim was falsely granted demands support from you far more detailed that the mere discovery of previously unknown evidence that may or may not prove relevant.

    If the claims are changed or rejected, and were previously assumed valid, then they were falsely granted -- giving a monopoly to a party that does not deserve one, and allowing them to wreak havoc on innovation.

    If you cared about innovation, rather than your paycheck, you'd recognize this. But since you're a patent lawyer, we know which one you care about.

    As for your constant refrain about being "wrong", I can only respond by saying that even when proof traversing your assertion is provided your keyboard suddenly goes into "sleep mode".

    You made multiple significant factually incorrect statements and have done so for a while. I will note, amusingly, that you fail to respond to the factual errors I brought up in this thread.

    Once and for all, I commented that it is difficult to see screen writers as having a fan base. This is not the same as saying they do not. You, on the other hand, made the comment that they have a somewhat rabid fan base. My comment was not a firm and definitive statement of fact. Yours was, which, of course, may or may not be correct since I do not have factual data in hand by which to measure its accuracy.

    Yes, let's be clear. On a post about Bret Easton Ellis raising a shit ton of money on Kickstarter, you directly claimed that you did not see how he could have fans. In response, we pointed out that he has a TON of fans, and asked you to admit that you were speaking out of ignorance (see the top of this comment). Then you started doing a head fake where you refused to admit that on a post about Bret Easton Ellis raising money that you said that you didn't believe someone like him could have fans. You then doubled down and insisted that the project would likely fail because we didn't know what an executive producer was. Then we pointed out that the project does have an experience exec producer... and you again pretended to have said something entirely different.

    You keep making factually incorrect statements because you speak from ignorance and a weird dislike of me personally. It's sad.

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