The Senate IP Subcommittee heard testimony today on the topic of patent quality:
Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?
Testimony from PTO Commissioner Drew Hirshfeld; Professors Polk Wagner, Melissa Freeney Wasserman, Colleen Chien; and Former PTO Acting Driector Teresa Stanek Rea. Sen. Tillis began with his remarks with a statement that about the “madness” of patent eligibility, including the Chamberlain case that found a garage door opener to lack patent eligibility. “No one can blame the USPTO” for this situated by the courts. That said, Sen. Tellis is looking for a consensus option.
In his testimony, Commissioner Hirshfeld began with an interesting statement on new examiner time allotment program:
Starting this month, all examiners began receiving additional examination time tailored to specific attributes of an application, including the overall number of claims, the length of the specification, and the number of pages in any filed information disclosure statements. Also starting this month, examiners with the least amount of examination time in our production system also began receiving additional time to align their time allotments with the requirements for current patent examination.
Beginning next fiscal year, we will utilize an updated process for assigning patent applications to patent examiners. This process will automatically match each application to the examiner best suited to examine the application, taking into account the complete technological profile of the applications, the work experience of each patent examiner, and the workload balancing needs of the agency.
One lesson here, I think, is to tread quite carefully when seeking to improve patent quality. The small firms and individuals who desperately need the patent system to bridge the gap between great idea and successful technology can be (and often are) disproportionately impacted by reforms that are of little consequence for large companies. . . . .
Many patentees have incentives to make their patent documents as unclear as possible.
Indeed, invalid patents are unnecessarily reducing consumer welfare, stunting productive research, and discouraging innovation. . . . Patent Office’s fee schedule should be restructured to minimize the risk that the Patent Office’s revenues will be insufficient to cover its operational costs and to diminish the Agency’s financial incentive to grant more patents when revenues fall short.
Ms. Stanek Rea:
But we do not want to rely exclusively on reviewing the quality of a patent only after it has issued. We also need to focus on front end modifications during examination.
[Congress should] encourage and expect the USPTO to engage in bold, persistent, and rigorous policy piloting and evaluation.