Bonum Certa Men Certa

Michael Frakes and Melissa Wasserman Complain About Low Patent Quality While Watchtroll Lobbies to Lower It Further

New paper from Michael Frakes speaks of the USPTO's incentive to grant patents irrespective of merit (e.g. quality/prior art)

Michael D. Frakes

Summary: A new paper, composed by Michael D. Frakes and Melissa F. Wasserman, explains that the way things are working in the United States may mean that patent examiners have an incentive to grant low-quality patents -- the very thing the patent microcosm wants as it leads to increase in litigation rather than innovation

THE year is ending today and we have broadened our scope for observing news about software patents. Expect more next year than in the past year.



A couple of weeks ago this scholarly paper was published, but we have not noticed it until more recently (when the media mentioned it). We thought it's worth propagating the outline as follows:

Problem

There is general agreement that the U.S. Patent and Trademark Office issues too many invalid patents—those patents issued on an existing technology or on an obvious technological advancement—that are unnecessarily reducing consumer welfare, stunting productive research, and discouraging innovation. However, there has until recently been little to no compelling empirical evidence that any particular feature of the patent application system causes the Patent Office to allow the granting of invalid patents, making it difficult to fully reform the patent system.

Proposal

Frakes and Wasserman build upon new empirical evidence to propose three changes to the patent system that would reduce the issuance of invalid patents: (1) restructuring the Patent Office’s fee schedule to minimize the risk that fee collections will be insufficient to cover its operational costs, while also diminishing its financial incentive to grant patents when collections are insufficient; (2) limiting the number of repeat applications that applicants can file for the same invention; and (3) increasing the time examiners spend reviewing patent applications.

Abstract

There is general agreement that the U.S. Patent and Trademark Office is issuing too many invalid patents that are unnecessarily reducing consumer welfare, stunting productive research, and discouraging innovation. In this paper, Frakes and Wasserman build upon new empirical evidence to propose three changes to the patent system that would reduce the issuance of invalid patents: (1) restructuring the Patent Office’s fee schedule to minimize the risk that fee collections will be insufficient to cover its operational costs, while also diminishing its financial incentive to grant patents when collections are insufficient; (2) limiting the number of repeat applications that applicants can file for the same invention; and (3) increasing the time examiners spend reviewing patent applications.


The EPO has, in recent years, been seduced into a similar trap. What is it that should be measured? What is the yardstick of growth? Is growth even necessarily desirable? This is about monopolies.

As longtime readers may know (some people have been reading the site for over a decade), we are not against patents. We are against software patents. We are pro-software copyrights (or copyleft). So the other day when we saw a British site stating that "Quiptel's technology and software patents will now drive the company's primary business focus" we were rather miffed. Why does Quiptel keep bragging about software patents? We have shown other examples in recent weeks. These patents are bunk and nothing to brag about.

"As longtime readers may know (some people have been reading the site for over a decade), we are not against patents. We are against software patents."Always remember that some of the heaviest lobbying for software patents comes from Watchtroll. So we have decided to watch it a little more closely in the coming year. Towards the end of the year this site/front group had mostly summaries/meta (e.g. [1, 2, 3]), but it also said: "In recent years, life as an IP strategist admittedly has been turbulent. Pivotal judicial decisions, the America Invents Act, and their application in the USPTO and the courts have been widely viewed as reducing the value of patents in the United States."

No, the America Invents Act (AIA) brought PTAB, which actually improved patent quality and increased the value of remaining -- not collective -- patents. The more bogus patents get granted, the lower the value of the whole on an individual basis. We explained this repeatedly in the context of European Patents (EPs) and the EPO.

"The more bogus patents get granted, the lower the value of the whole on an individual basis."As we shall show later today, Watchtroll carries on with PTAB bashing, courtesy of the patent microcosm's echo chamber (people who profit from lawsuits). Here is Watchtroll boosting Paul Morinville, one of the most radical among PTAB bashers. Isn't it incredible that some law firms and even IBM are willing to associate with such people?

By contrast, Juristat offered a more objective annual review and Mark Summerfield down under has shared some statistics and thoughts. Here's what he wrote yesterday:

The coming year promises to be another interesting – and potentially turbulent – one for the Australian patent system. Public consultations have already taken place in relation to proposed changes to patent (and other IP) laws in response to the Productivity Commission’s (PC) review of Australia’s IP arrangements. These changes include potential substantive amendments to the law of inventive step, while draft legislation has already been published in relation to other PC recommendations, including abolition of the innovation patent. It is likely that some, if not all, of these legislative changes will be passed during 2018.


This does -- among other things -- end software patents. They were never quite blessed by the system anyway, but now there are even stricter regulations in place (or rules in the Australian patent office) to prevent patenting of software. Australia seems to have gotten more serious about patent quality rather than quantity.

Recent Techrights' Posts

The Aim is Not Fame
Reposted from schestowitz.com
SLAPP Censorship - Part 114 Out of 200: Thousands of Long Articles to Come, Properly Covering the SLAPP Industry in the UK and Its Modus Operandi
"Stowell described SLAPPs as ‘a stain on our legal system’."
Chad's Move to GNU/Linux or the Point of Exceeding 5% "Market Share"
experienced centuries of being colonised
GAFAM is Drowning in Debt, GAFAM is Clearly Not Sustainable Anymore (It Runs on Borrowed Money and Bailouts)
The war and surrender in Iran will deepen the debt; we'll see the GAFAM reports in late July
Microsoft at 50 Follows the General Trajectory of Skype
How many years does Microsoft have left before payroll becomes impossible?
Cybersecurity Does Not Mean Asking Microsoft for Permission to Boot
There were very good and timely reasons to speak about the matter, including impending antitrust complaints against Microsoft
 
Links 22/06/2026: "The Sycophancy Machine" and "Port 22 Open for 54 Days"
Links for the day
When People Who Make the Most Money Are the Best "Boot Lickers" (Sucking Up to Jeffrey Epstein's Circle and the Dictator)
Sucking up to rich people may pay off
"Internally Important, Externally Irrelevant": IBM in a Nutshell
Right now its debt spins out of control and its stock spirals down the drain
Finding a Way to Get Paid to Improve LibreJS
So now we have more people resurrecting LibreJS and improving it
Microsoft Can't Even Wait Until July, Shutdowns and Layoffs Already Happening
Mashable speak of "a grim picture for the state of Xbox."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 21, 2026
IRC logs for Sunday, June 21, 2026
Gemini Links 22/06/2026: Appreciating Simple Things, Perfect Summer Evening, IRIX, Vim and so
Links for the day
Gemini Links 21/06/2026: Dating Oaks, Paying With Cash, and "More on Withered Technology"
Links for the day
GAFAM Was Never an Ally to Europe
Only 1 in 10 Europeans see US as an ally — study [...] military providers in "tech" clothing cannot be trusted
GitHub, LinkedIn, and XBox Will Finish Like Skype (Sustainability Crisis)
Skype should become a verb. When Microsoft 'Skypes' something it means it basically shuts it down with some temporal excuse/s.
Drowning in Garbage: AUR Shows That Too Much Low-Quality Software (Including Slop) is Bad for Everybody
What happened in AUR had happened elsewhere before and will happen again in the future
Links 21/06/2026: EU on Patented (Monopolised) Crops, Microsoft Software "Narcs on You to Your Boss"
Links for the day
A Year After a Microsofter Took Over The Register MS It is Effectively a Content Farm With News as a 'Side Dish'
This is not journalism, this is spam
IBM Pays the Media and Cons Some 'Journalists' Into Participating in "Quantum" Spam
"The Boy Who Cried Wolf"
You Don't Need an 'App' for Your Birdhouse (Slopfondlers Come for Birds)
That they sell those things as "AI" really says a lot about how dishonest slopfondlers really are
SLAPP Censorship - Part 113 Out of 200: The United Kingdom is Not Turkey
Turkey is ranked almost worst in the Western World for press freedom
Links 21/06/2026: Bots from Alibaba Do Harm and Many Xbox Games Are Being Cancelled
Links for the day
5 Years After Release of Vista 11 Not Even One in 5 People Use It (in the US)
It doesn't look like Vista 11 will ever be adopted like prior versions and announcing a Vista 12 will mostly upset companies/organisations that only recently "upgraded" to 11
Gemini Links 21/06/2026: Boca Raton, Perfect Summer Day, and LLM Doing Things Poorly
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 20, 2026
IRC logs for Saturday, June 20, 2026
Microsoft Insiders - Not Limited to XBox - Expect a 'Bloodbath' (Their Own Word)
This isn't limited to XBox
Reports of "PIP" as Means of Mass Layoffs at IBM This Year
some insights into the PIPs
SLAPP Censorship - Part 112 Out of 200: Strangles Women, Then Refuses to Even Attend Any of His Own Hearings About It
It is meanwhile very apparent that Brett Wilson LLP is becoming a "mench sphere"
Gemini Links 20/06/2026: "There Was Never Supposed to Be a Camera" and "What Is A Programming Language"?
Links for the day
Geminispace Reaches Its 8th Year, Today It Has Turned 7
Gemini Protocol 'went live' 7 years ago, just before the COVID-19 pandemic
Links 20/06/2026: "Full Page Paralysis" and "Hopes For Xbox’s Future Might Be Over Before It Even Begins"
Links for the day
European Patent Office's (EPO) Strikes "at a Scale not Seen Since Battistelli", European Patent Grants Down by Over 25% in Past 3 Months
The actions are effective
Real Security Elusive, Microsoft Layoffs to Coincide With Certificate Apocalypse
July 1
Links 20/06/2026: Microsoft's "Year of Shame" and "Feed the Writers"
Links for the day
2026 is a Year of Strikes at the European Patent Office (EPO)
As it stands at the moment, to many people the EPO represents crime, not law
Web Browsers Are Technically Bloatware (No Matter What Runs in Them)
Don't make it a society that shames people into using a Web browser where none should be needed
Fedora Has Changed a Lot Since I Last Used It (IBM Dominates Almost Everything, IBM Agenda Displaces Community Goals)
"It is effectively 100% run by Red Hat/IBM employed people... even when they are community-elected representatives."
Andy (Cyber Show) on His Teacher Who "Squeezed Every Last Drop Out of Life, With Gratitude, Humility, Generosity and Mettle"
Some call them "eccentric" and are dismissive about what they have to offer
Only 1.5% Oppose the European Patent Office's (EPO) Strikes and Other Industrial Actions Until 2027
Among those polled/surveyed (in a ballot)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 19, 2026
IRC logs for Friday, June 19, 2026
Gopher/Gemini Links 20/06/2026: Slop With Tcl/Tk and Nokia 770 Perishes
Links for the day