Patent Protection key to US economic progress

On Monday the Senate confirmed Andre Iancu as director of the U.S. Patent and Trademark Office, an office that most Americans barely know exists but that will deeply influence how well our country does at what it has long done better than anyone else — innovate.

An efficient, well-functioning patent system is among America’s most powerful levers for maintaining its global pre-eminence in R&D investment and productivity. But in this age of ever more sophisticated and complex technologies, the Patent Office is sure to make mistakes. Iancu’s challenge will be to maintain and strengthen two essential pillars of patent quality: efficient post-issuance review to weed out bad existing patents and rigorous examination of patent applications to strengthen the quality of new approvals.

A major step in bolstering quality control was the creation in 2011 of the Inter Partes Review process, a part of that year’s America Invents Act. Without the IPR process, patent granting would be biased toward error. The time that an examiner can devote to each application is limited, on average 19 hours per application. Applicants are not required to conduct prior searches, so gathering evidence can fall entirely on the examiner. And the burden of proof falls exclusively on the examiner, who must demonstrate that a patent should not be issued. No wonder that a 2010 study reported one junior examiner saying, “Rather than doing what I feel is ultimately right, I’m essentially fighting for my life.”

A 2017 study reported that patent allowance decisions are affected by Washington, D.C., weather: A review of 8.8 million Patent Office decisions between 2001 and 2014 showed a statistically significant correlation between unusually warm days and patent allowance rates — and a similar correction between cold days and final rejection rates. The study’s author concludes, “These effects constitute a decision-making bias which exists even after controlling for sorting effects, controlling for applicant-level, application-level, primary class-level, art unit-level, and examiner-level characteristics. The bias even exists after controlling for the quality of the patent applications.”

The IPR proceedings have helped to restore predictability to our system. They provide a fair, balanced, and fast procedure, giving the Patent Office a second chance to consider whether an initial decision to grant a patent was correct. Was the invention a breakthrough? Was it truly unprecedented? Did it genuinely not overlap existing patents or practices? At the same time, IPR proceedings also support quality patenting on the front end. They create incentives for applicants to find the best prior art and distinguish their claims accordingly.
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