The U.S. Patent Quality Debate Heats Up

The ongoing debate on patent reform has an interesting, continuing sidebar about patent “quality.” One friend entrenched in the IP legal/consulting world thinks there is a continental divide on the issue … where those East of the Mississippi feel USPTO is performing admirably, and those West feel just the opposite. He also feels patent attorneys in the East feel having their patent litigated is a sign of failure, while those in the West feel the validity and strength of a patent can only be determined through litigation, and litigation is part of the cost in aggressive IP management.

The Economist recently joined the discussion with a Washington, DC by-line and the following head:

The spluttering invention machine

America’s patent system has problems; a new law would fix only a few

Them’s fightin’ words to some! The comments on the article were refreshing and some were more stimulating than the article! You can read them here.

Defending America’s patent system, with first responder honors, Dale Halling accused The Economist of publicizing a myth, the “Patent Thicket” theory that states, simply, that the patent world is like a pot of stew, and adding more patents serves only to thicken it, making the introduction of the next ingredient or invention less contributory. An opposing commenter explained it this way, “the social costs of too many applications and too many litigations and evergreening of medicine patents obviously weigh on US citizens and to some extent on the other part of the world.”

Halling opines, “there is plenty of evidence that a lack of a patent system or a weak patent system inhibits innovation and economic growth. For instance, North Korea has no patent system and has absolutely no innovation. Those countries that first adopted a modern patent system have been the most innovative. When the patent system was under attack in the US in the 1970s the US suffered stagflation.” You can read more from Dale Halling here.  

The Economist argument that because the USPTO entertains more applications than, say, are submitted in Europe, the U.S. is more innovative.  One commenter suggested, again, The Economist was sloppy in drawing conclusions without examining the metric.  How many of those applications are from foreign entities? That gaining a U.S. patent may ultimately be less expensive than gaining one in Europe, might that fact alone sway the numbers. 

Perhaps the most interesting point made regarded the role of the courts in the U.S. in shaping patent “policy,” thereby improving patent quality, with Myriad (and to a lesser extent Bilsky) taking center stage. It may well be that true reform in the patent arena will continue to be shaped by the courts, and periodic legislation will only be needed to round off the edges.