One of the more popular topics we post on is patents. In 2017, we wrote about the eye-opening practice of companies warding off future challenges to their patents by shielding themselves with Native American tribes’ sovereign immunity. We followed up with a post that continued the discussion on this practice, which a U.S. senator called “one of the most brazen and absurd loopholes” she had ever seen. Now we learn how “bogus patents” get passed to begin with.
A recent Ars Technica report summarizes the insights found in a Brookings Institution paper on why more low-quality patents aren’t rejected. It comes down to time and money. Per Ars and the paper’s authors, legal scholars Michael Frakes and Melissa Wasserman, the specific ways are as follows:
- The more applications, the more fees that go to the United States Patent and Trademark Office (USPTO).
- A rejected applicant has an unlimited number of applications it can refile. What better way to be done with a persistent, previously rejected applicant than to finally approve the patent.
- Applications are reviewed less thoroughly by time-crunched senior patent examiners.
Ars points out that while none of these observations are new, what is new is the empirical evidence to back them up.
“They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we’d likely wind up with fewer bogus patents floating around.”
Where did the data come from? According to the article, the researchers first acquired the millions of decisions made between 1983 and 2010 and then compared the patent office’s behavior before and after 1991, when the office’s operating budget first became dependent on application fees.
After reviewing the pair’s research and findings, Ars concludes that the high annual cost (one estimate puts it at $29 billion) to the general public of defending against patent lawsuits makes the concept of a user-funded patent office a problematic one.