Summary: The USPTO is subjected to more criticism for defending not innovation but largely maligned practices
Congress passed the Leahy-Smith America Invents Act (AIA) (S.23), commonly referred to as “patent reform,” in September 2011. The AIA is widely acknowledged as the most important change to U.S. patent law since 1952. The AIA took years of legislative wrangling to pass, and it went through many, many iterations. The resulting law is a voluminous 59 PDF pages with 37 sections.
As it turns out, not only was this bill quite important, but for its length, it was quite buggy. With so many words and moving parts in the enacted law, it’s not surprising that some errors crept into the final version.
Prior to KSR v. Teleflex, the Federal Circuit granted significant deference to the PTO on obviousness determinations; following KSR, that deference has only increased. Zumbiel v. Kappos represents possibly one of the more extreme examples of that deference. This appeal is unusual, however, in that it involves. substantial deference to the BPAI/PTAB’s finding that a claim is nonobvious, deference that is (in the dissent’s view) contrary to other aspects of the Court’s holding in KSR.
One patents-centric site says: “Reading through the tea leaves, the USPTO appears quite interested in exploring means-plus-function claiming with the software community.”
“More people need to speak about the USPTO itself.”This is not quite true, as we explained before. The bottom line is, a lot of pressure and a lot of unwanted attention hits the USPTO these days. It might not be long before outside intervention, such as the recent intervention from the US DOJ, will discredit and subsequently reform the USPTO, even forcibly.
It may sound strongly-worded, but the USPTO is our enemy, and those which exploit the USPTO (it is corruptible and generally just open to business) are not the best place to hit; misplaced criticism just doesn’t eradicate the problem at its root. More people need to speak about the USPTO itself. It’s where patents (arms) come from and addressing one company at a time (like hydra heads) just isn’t too effective. █