Focussing on Patents that Actually Matter
In a short magazine piece entitled "What to do About Bad Patents, "Mark Lemley, Douglas Lichtman, and Bhaven Sampat write that
They go on to urge three basic reforms to the patent system for addressing that problem. First, they would weaken the presumption of validity that today attaches to all issued patents. Second, because legitimate inventors need as much certainty as the law can provide, they would give applicants the option of earning a presumption of validity by paying for a thorough examination of their inventions. Third, they would institute a post-grant opposition system, a process by which parties other than the applicant would have the opportunity to request and fund a thorough examination of a recently issued patent. They beleive that these reforms would allow the Patent Office to focus its resources on patents that "might actually matter," reduce the incentive to file patents of questionable validity, and reduce the harm caused by any such questionable patents.
Most patents do not matter. They claim technologies that ultimately failed in the marketplace. They protect a firm from competitors who for other reasons failed to materialize. They were acquired merely to signal investors that the relevant firm has intellectual assets. Or they were lottery tickets filed on the speculation that a given industry or invention would take off. Those patents
will never be licensed, never be asserted in negotiation or litigation, and thus
spending additional resources to examine them would yield few benefits.
. . . The problem, then, is not that the Patent Office issues a large number of bad patents. Rather, it is that the Patent Office issues a small but worrisome number of economically significant bad patents and those patents enjoy a strong, but undeserved, presumption of validity.
Framed this way, the solution naturally follows: The Patent Office should focus its examination resources on important patents and pay little attention to the rest. But it is difficult for the government to know ahead of time which patents are likely to be important.
Overseas, in an move that is intended to address application pendancy, rather than patent quality, the Japanese Patent Office reportedly plans to ask its customers to only file for patents that could be "globally competitive." The number of patent applications in Japan awaiting examination is expected to surpass 800,000 by March of next year and the waiting period before the start of patent examination stood at 26 months on average in 2004. Get more on the Japanese Patent Office from Peter Haas's Patent Prospector Blog on December 23, 2005.