Oct 22, 2014Legal
Is the USPTO Ready to Turn Over a New Leaf?

The White House just announced the nomination of  former Deputy General Counsel for Google, Michelle Lee, for the next director of the US Patent and Trademark Office (USPTO).  The nomination is one in a series positive steps taken by the White House towards a potentially more efficient US patent system.  

Thus far 2014 has seen its share of setbacks for the US patent system.  In may an important patent reform bill hit the cutting room floor due to the lack of bipartisan support needed to push it through the Senate Judiciary Committee.  Then in August the House launched an investigation into abuses of the USPTO system for teleworking .  On top of these specific issues the unexamined patent application backlog  remains above 600,000 and even with the dip in lawsuits after Alice Corp vs. CLS Bank the number of patent suits filed annually remains on the high side.

Despite the shadows over the year so far, Lee’s nomination is a promising indication of change to come.  Lee claims to be "pro-patent system" placing the well-being of the patent system first.  In a discussion of the unfortunately high rates of litigation, especially originating with Non-Practicing-Entities (NPEs) often colloquially called patent trolls, Lee stated “If there is a bug in our system, I think it ought to be fixed…  When patent rights are used not to help bring new products to the market, but rather to extract "cost of litigation" settlements… the careful balance of costs and benefits underlying our patent system is threatened.”   Hopefully Lee will follow up on her encouraging stance and take a stand on the side of good patents with an energetic approach to shaping the future of the USPTO.

Lee’s statement about balancing the costs and benefits of the patent process gets to the core of another set of issues with the current system.  The patent system is in place to to promote and foster innovation.  However, if bad patents continue to leak through the system in growing numbers as has been the case in recent years, they undermine all of the benefits.  Large numbers of bad patents invite litigation and innovators are left vulnerable to lawsuits questioning  patent validity or trying to extort settlements.  With the court system used regularly to review the work done at the USPTO the whole process wastes time and money and becomes an effective tax on innovation.  

In 2013 the USPTO staff of a little over 8,000 examiners processed 609,052 patent applications.  Despite a workload growing faster than new examiners can be hired, individual examiners are still expected to complete a comprehensive prior art search for each case.  Given the vast quantity of potentially relevant prior art for each prospective patent and the many potential sources, including foreign language documents and non-patent literature it is unreasonable to expect single examiners to be able to rapidly and comprehensively determine patent validity for each of the multitude of patents that cross their desks.  

However, this process is not without hope of innovation.   One of this year’s Presidential Innovation Fellows is Christopher Wong is tasked with exploring crowdsourcing based patent initiatives for the USPTO.  Wong worked on the Peer to Patent initiative integrating public participation into the patent examination process while at New York Law School, and now he is looking into possibilities on a larger scale.  Crowdsourcing prior art searches during the examination process would be an innovative way to reduce the USPTO’s patent backlog while improving the quality of patents granted.  An international community working collaboratively can easily access foreign language documentation and non-patent literature nearly impossible for a single examiner to find or study exhaustively.  While a single examiner has a finite area of expertise, with a crowdsourced patent search subject matter experts from a wide variety of backgrounds can participate leading to a much more comprehensive examination.  

There is always room for improvement in established systems, and the USPTO is no exception.  However, the appointment of leaders such as Lee and Wong are a positive sign for the future and an indication of an openness to the change that needs to occur.  New, innovative, and creative approaches are needed so that innovation and the system designed to protect it continue to serve as the foundation for a strong US economy.

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