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The Role of the USPTO in Driving Patent Policy

October 6, 2010

Gene Quinn writes an interesting article about privatizing the Patent Office. I think this would be a great idea. A patent office with only minimal governmental ties would be able to operate more efficiently and effectively. In addition to raising good points, his post reminded me of the important role that the USPTO plays in shaping and driving the patent system.

It is said that bad lawyering makes bad law. Likewise, the issuance of bad (i.e. not thoroughly examined) patents can also lead to bad law. An example of this would be a legitimate invention that is claimed too broadly but issues anyway. That patent, if litigated, could lead to a sweeping ruling (patentable subject matter comes to mind) that applies not only to the particular claims litigated, but also interferes with many other legitimate inventions. This type of problem is more likely to be prevented by thorough examination by a strong, focused, and fully equipped patent office.

Unfortunately, thorough examination of patent applications is easier said than done. The USPTO is forced to find the difficult balance between quick examination to deplete the current backlog, and complete examination to develop quality patents. This balancing act may lead to issued patents that have not been given the attention they deserve. Lack of funding is certainly a root cause of the problem. Also problematic, as Quinn points out, is the fact that the USPTO, as a government agency, has limited operating freedom, and has to deal with governmental bureaucracy.

Right now, the USPTO is doing the best it can with what it has. Examiners have been working extremely hard to chop away at the backlog and Kappos seems to be leading the office in the right direction. However, with more funding and freedom of operation, the USPTO could do better. A more effectively operating patent office would result in the issuance of higher quality patents, which would lead to stronger and more concrete case law, thereby driving patent law and innovation forward.

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One Comment leave one →
  1. October 11, 2010 5:30 pm

    Though in theory privatizing the USPTO might seem like a tempting idea, I have a feeling that it could do damage to the (already-suffering) public image of patent law. Though undoubtedly bad patents do squeak through now, I suspect that privatization would remove accountability and lead to accusations of undue influence and corruption. The patent system certainly has problems, but I’m not sure that effectively replacing it with another system is the best idea.

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