Everyone knows that it is far too easy to get a (bad) patent. Fingers often point to the U.S. Patent and Trademark Office (PTO), which is often criticized for making awful patenting decisions. Legal scholars have offered several reasons for the quality problem, including low substantive standards for patentability and problems with the PTO’s inner workings, decision-making, and policy choices.The three asymmetries are not so clear from the abstract. In short: 1) the default is that applicants get the patent, and the examiner must prove otherwise, 2) applicants surely know more about their inventions and the state of the art than the examiners, and not all of this knowledge makes it into the specification, and 3) while examiners may be technically competent, they are often outmatched by legal experts.
This Article offers a very different explanation for the patent quality problem. Drawing attention to what happens inside the PTO is clearly the correct locus; however, any serious headway toward improving patent quality must focus more directly on patent examination. My basic claim is that low-quality patents issue primarily because of a confluence of three asymmetries — proof, information, and legal — that exist in the current patent examination paradigm. I explain how these asymmetries tip the scales of patentability so far in the applicant’s favor that anyone who seeks a patent on anything usually gets one. I propose a new patent examination regime which would eliminate the three asymmetries, derail frivolous filings, and make a patent grant far from guaranteed. Rebalancing the scales of patentability would improve patent quality and promote broader goals of patent policy.
While some of these have been discussed elsewhere, when presented and examined together like this it presents a pretty bleak picture of patent examination, reliant primarily on the good faith of applicants to not claim the world in technologies where there is little prior art. Indeed, I think these concerns are one reason we see such broad (overbroad) software claims from the mid-1990's.
The article presents a proposal to solve some of these problems. As with many such proposals, time will tell if it has any legs. This article is a helpful read for anyone who wants to learn a bit more about the mechanics of examination from a higher level of abstraction and with a critical eye.