The Broken U.S. Patent System
Kirt's Cogitations™ #277

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The U.S. Patent and Trademark Office (USPTO) is constantly advertising for examiners. Its workload is overwhelming and the consequences are significant. Based on information on an extremely well-written and researched article in the July/August 2016 issue of Popular Mechanics magazine titled "The Greatest American Invention," the situation is practically out of control. Similar to many other pieces published in the last few years, author Scott Eden meticulously outlines the systematic failures of the current patent bureaucracy and how, as is typical, mostly unqualified (i.e., utterly technically ignorant) lawmakers in an attempt to 'reform' it pass regulations that make matters worse. Unless you happen to be a large corporation, that is, thanks largely to the 2011 Leahy-Smith "America Invents Act" (AIA).

The USPTO's attempt to quash the disruptive domain of the 'Patent Troll' (a term coined by Intel lawyers) phenomenon of the last two decades has resulted in scores of duly assigned patents being IPR'd (inter partes review) by the very office whose examiners declared the inventions to be original in the first place. The unexpected consequence of the AIA is that the very same procedures designed to help invalidate intellectual property (IP) claims contained in the massive portfolios of patent trolls are being effectively used against small-time patent holders. Teams of lawyers, paralegals, and specialized prior art searchers perform extensive USPTO archive document hunts, and are having a lot of success.

The burden of proof of originality is and always has been primarily the responsibility of the applicant. Patent examiners can only allocate a relatively small amount of time to research. The best defense, as the football analogy goes, is a strong offense. Hiring a legal team is no guarantee of a bullet-proof patent. When you file a patent application, be sure to have exhaustively searched for prior art yourself, and do not be surprised to learn what you honestly thought was an original idea is in fact not. The USPTO has an entire section devoted to prior art searching, so be sure to use it.

"The Greatest American Invention," is a fairly long article, but well worth reading - especially if you are a patent holder or expect to be one someday.

Posted November 3, 2016