Research suggests that 28% of patents are at least partially invalid. That number may be even higher—as much as 56%—in industries like software and business methods. This issue is somewhat unique to the USPTO; it is not unheard of for an innovation to be granted patent protection in the United States while being denied in Japan and Europe.
These invalid, low quality patents are often overly broad or for technologies that do not actually work. Once these (partially) invalid patents are issued, they have the power to harm healthy, innovative businesses. Low quality patents are a target for patent trolls because they often have broad claims. These broad claims can be used to extort licensing fees from businesses using technology that is not actually novel or non obvious but is patented. Perhaps the most well-known example of this practice is MPHJ Technology Investments, a company that sent thousands of letters to businesses assumed to be using the company’s patented “scan-to-email” technology, which probably never should have been a patent at all.
These low quality patents become prior art and impact all further development in the field. Better technology, which is arguably more patentable, cannot be protected or even used in some cases because of an invalid patent. Recently, Labrador Diagnostics used a patent previously granted to Theranos (for a technology that presumably does not work) to stop a medical diagnostics company, BioFire Diagnostics, from manufacturing or selling its COVID tests. These negative effects of low quality patents all have the same outcomes: reduced innovation and a decrease in the general good that comes from innovation.
Addressing Patent Quality
The issue of low quality patents received a lot of attention in the early 2000s when patent trolls like MPHJ Technology Investments first reared their ugly heads. The second example above has again brought to light the damage invalid patents can do to American innovation and the greater good. The Subcommittee on Intellectual Property recently held a hearing on the topic to discuss potential solutions.
IPWatchdog summarized the hearing and solutions proposed throughout, which included:
- Cross-referencing inventors against “lists of retracted papers, criminal indictments, disciplinary proceedings.”
- Questioning inventions that seem outlandish.
- Practicing reduction to practice.
- Using the Peer to Patent program.
- Penalizing fraud.
- Incentivizing patent quality for patent examiners.
- Adhering to Section 112.
- Increasing available resources by keeping patent fees within the USPTO.
- Introducing a “gold-plated” patent.
Industry expert Julie Burke, Ph.D. also raised concerns about this year’s revisions to the Performance and Appraisal Plan (PAP) for examiners. In Burke’s opinion, these changes may lower quality requirements for examiners.
Publishing Quality Patents
Your organization can contribute to a healthier patent system by submitting high quality patent applications. Strong patents come from comprehensive research throughout the innovation lifecycle. A thorough review of relevant prior art, patentability, and freedom to operate allows IP teams to draft well-written and informed patent applications with all of the information patent examiners need to grant valid patents.