03.24.19

Just Published: Irrational Ignorance at the Patent Office

Posted in America, Patents at 2:46 am by Dr. Roy Schestowitz

Frakes, Michael and Wasserman, Melissa F., Irrational Ignorance at the Patent Office (November 13, 2018). Vanderbilt Law Review, Vol. 72, 2019, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2018-64.

Michael D. Frakes
Homepage of Michael Frakes

Summary: Iancu and his fellow Trump-appointed “swamp” at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States

THE latest paper from Michael Frakes (Duke University School of Law) and Melissa F. Wasserman (The University of Texas at Austin School of Law) was last revised yesterday (23rd of March, 2019) and it is applicable to the European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO), especially under Battistelli, Campinos, and Iancu. The full paper is recommended by Lisa Ouellette, who has just added (having dealt with it elsewhere 11 days ago): “my latest Jotwell post highlighted a terrific forthcoming article by Michael Frakes and Melissa Wasserman.”

Frakes and Wasserman had previous work indirectly (via the media) cited by the staff union of the EPO (SUEPO). We mentioned it a year and a half ago.

This is their latest abstract:

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to rely upon litigation to make detailed validity determinations in those rare cases rather than increase the expenses associated with conducting a more thorough review of all patent applications. He supported his thesis with a cost-benefit calculation in which he concluded that the costs of giving examiners more time outweighs the benefits of doing so.

Given the import of the rational ignorance concept to the debate on how best to address bad patents, the time is ripe to revisit this discussion. This Article seeks to conduct a similar cost-benefit analysis to the one that Lemley attempted nearly fifteen years ago. In doing so, we employ new and rich sources of data along with sophisticated empirical techniques to form novel, empirically driven estimates of the relationships that Lemley was forced, given the dearth of empirical evidence at his time, to assume in his own analysis. Armed with these new estimates, this Article demonstrates that the savings in future litigation and prosecution expenses associated with giving examiners additional time per application more than outweigh the costs of increasing examiner time allocations. Thus, we conclude the opposite of Lemley: society would be better off investing more resources in the Agency to improve patent quality than relying upon ex-post litigation to weed out invalid patents. Given its current level of resources, the Patent Office is not being “rationally ignorant” but, instead, irrationally ignorant.

Ouellette has noted: “Litigation savings depend on Frakes and Wasserman’s prior finding that time-crunched patent examiners make mistakes, and that they are more likely to erroneously allow an invalid patent than to reject a valid one. When examiners are promoted up a step on the USPTO pay scale, they suddenly receive less time per application. Frakes and Wasserman found that they manage the increased workload by spending less time searching prior art and granting more patents. Based on both subsequent U.S. challenges and comparisons with parallel applications at foreign patent offices, these extra patents seem to involve more mistakes. Patents rejected by time-crunched examiners, on the other hand, are no more likely to be appealed within the USPTO. Extrapolating from these results, Frakes and Wasserman estimate that doubling examination times would lead to roughly 80,000 fewer patents granted and 2,400 fewer patent/lawsuit pairs each year, translating to litigation savings above $490 million. Similar calculations suggest about 270 fewer instituted PTAB challenges, for an annual savings above $110 million.”

That’s alluding to Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) for the most part. In conclusion she says: “Most importantly, any of these interventions should be implemented in a way that aids robust empirical evaluation. The USPTO has shown an encouraging willingness to experiment with pilot programs that might improve examination, but has not implemented them in ways that make it easy to evaluate their effectiveness, such as by randomizing over applicants who want to opt in to the programs. Rigorous pilot programs may be both financially and politically costly, but how much effort to spend on examination is a core question of patent policy with tremendous financial implications. And I’m sure the USPTO could easily find free help from academics—perhaps including Frakes and Wasserman—excited to help design and evaluate these initiatives.”

At the moment Iancu seems to be taking instructions and advice from law firms, neither from academics nor scientists. This isn’t particularly shocking considering who gave him the job and where he came from.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 24/2/2021: MariaDB 10.5.9, Krita 4.4.3 Beta, and Debuginfod Server for Debian

    Links for the day



  2. Self-Host Your Videos, Take Full Advantage of HTML5 and Video Attributes

    For self-hosting of videos over the World Wide Web (Gemini too can handle videos; its clients/browsers can, for example, link video files/URLs to external media players) it's worth reviewing the full set of features made available by the standards because a lot can be accomplished without JavaScript and without unnecessary bloat/complexity



  3. Trying Out NoiseTorch to Reduce Background Sound/Noise in GNU/Linux

    An introduction to noisetorch (or NoiseTorch), an application that helps create virtual microphones/devices with reduced background noise



  4. How the Big Banks and OIN Can Whitewash Software Patents and Do Nothing Concrete About Patent Trolls

    Response to the puff piece entitled "How the Big Banks and OIN Can Lock Out Patent Trolls with Enabled Publications"



  5. IRC Proceedings: Tuesday, February 23, 2021

    IRC logs for Tuesday, February 23, 2021



  6. How to Set Up a Gemini Server of Your Own, Even on a Simple Single-Board Computer

    Using Agate to start one's own Gemini capsule (self-hosted) is a lot simpler than one might be inclined to believe; this is a detailed HOWTO, hoping to encourage more people to join Gemini space, which is fast-growing and free of garbage



  7. Links 23/2/2021: Tails 4.16, Libinput 1.17, Fwupd 1.5.7, Firefox 86, NeoChat 1.1

    Links for the day



  8. The Word Master is Not Problematic in Most Contexts and Its Origin Hasn't a Connection to Slavery

    Slavery is to the word "master" mostly disconnected; it might, however, be closely connected in the minds of racists or the agenda of highly racist corporations (profiting from racism) that look for ways to distract from their racism



  9. On Misapplication, Misuse, Overuse and Abuse of Words (to Suit False Narratives)

    It is looking like the word "abuse" has been extended to basically mean all sorts of things including the act of actually exposing real abuse



  10. The Administrative Council Needs to Fix the EPO While It's Still Possible

    EPO staff and former staff (pensioners) aren't happy and the it's the responsibility of the Administrative Council to do something before it's too late (the reputation of the Office is already severely harmed and it's unable/unwilling to recruit suitable and qualified people, both as examiners and managers, respectively)



  11. 'These Questions Remain Unanswered': Campinos Became Battistelli Just Halfway Through His Term

    The Central Staff Committee of the EPO highlights the grim situation or the deadlock reached after totally dysfunctional Office management somehow managed to kill off channels of communication, in effect going back to where things were back in 2018 under Battistelli



  12. 'The One Percent': Salary Adjustment Procedure (SAP) Supported Only by 1% of EPO Staff

    Out of 2,237 EPO workers who expressed their position on the SAP, which in essence lowers their salary, only 31 expressed support for it (that's 1.385%)



  13. IRC Proceedings: Monday, February 22, 2021

    IRC logs for Monday, February 22, 2021



  14. DDOS Attacks and Decentralisation

    Our server, which is shared among sites, has been under persistent distributed denial of service (DDOS) attacks almost every day in recent weeks, culminating in much worse attacks last night, but we're not too worried anymore



  15. Links 23/2/2021: Gemini (and Gopher) on the Rise Again, Systemd 248 Reaches RC1

    Links for the day



  16. On the Terms Master, Main and Abuse

    Reprinted with permission from Daniel Pocock



  17. Microsoft Inside — Part IV: Microsoft Everywhere, Looking to Poach Developers, Not Disclosing What It Really Wants

    As it turns out, just about everyone looking to recruit for a Microsoft-connected project/company (working on Raspberry Pi, Ubuntu etc.) near Microsoft is 'former' Microsoft, but people who are being approached aren't being told so, at least not upfront; those are very familiar and old tactics, which merit a word of caution to all



  18. Microsoft: We Ain't Done Until Raspberry Pi Won't Run (Anything But Our Proprietary Software With 'Telemetry' Surveillance)

    The ongoing series which we started yesterday and still publish today (about Microsoft recruiters) shows that Microsoft has rather toxic ambitions and the general idea is to infect everything with Microsoft, even the things that compete against Microsoft



  19. Controlling the Conduct of Large Corporations (and Monopolies) Would Help Tackle Disproportionate and Asymmetric Power Structures

    A "CoC" (Code of Conduct) is often crafted or drafted with good intentions; but with enforcement put in the wrong hands it is a tool of corporate oppression instead of protection of people's dignity



  20. Another Reason to Boycott Microsoft/GitHub: The War on Reverse-Engineering

    The high-profile fan-made reverse-engineering efforts are being proactively censored by Microsoft on behalf of another company (without as much as due process), reaffirming the problematic nature of GitHub, a monopoly that represses Free software developers



  21. Links 22/2/2021: Lots More About Linux on Mars, Release of 4MLinux 35.2

    Links for the day



  22. Microsoft Inside — Part III: Microsoft Finds Out That Free Software Developers Don't Want to Work for Microsoft on Microsoft Platforms

    The attempts to poach high-profile Free software and GNU/Linux developers aren't succeeding, especially once it turns out who's really behind those attempts (they don't give it away upfront)



  23. Techrights is Now in Gemini (Having Completed a Two Week-Long Migration) With Over 32,000 Pages in Total

    The site is now mirrored across an alternative to the World Wide Web



  24. Links 22/2/2021: Cherry Pi PC and Release of Xfce Panel Profiles 1.0.13

    Links for the day



  25. IRC Proceedings: Sunday, February 21, 2021

    IRC logs for Sunday, February 21, 2021



  26. The Focus on Delivery Style Rather Than the Substance is an Extension of Cancel/Censorship Culture

    Don't look away because some bits of information are new and unfamiliar; there is always suppressed information and companies tend to pay publishers to publish material contrary to what is true (to seed confusion and urge for a false sense of "balance")



  27. Microsoft Inside -- Part II: Microsoft Has Plans for the Raspberry Pi or Linux SBCs in General (and It Hides Its Role in That)

    Some 'former' Microsoft employees are looking to hire GNU/Linux developers/employees without revealing who they are and who they still work with (Microsoft)



  28. Links 22/2/2021: Oracle Solaris 11.4 SRU30 and Lubuntu in Focus

    Links for the day



  29. Technology Will Become More Inclusive When We Identify and Tackle the Root Causes, and Choice of Words Ain't That

    The troublesome misdirection from real issues (such as imperialism and racism that beget social apartheid) means that mainstream media hails corporations as the solution to the very problem they contribute to (for profit)



  30. We Need to Keep the Word 'Master' to Explain What Large Corporations Have Become to Society (Same Corporations Trying to Abolish This Word)

    There are corporate consortia and a media obsession with supposedly offensive language; little attention is being paid to the blood spilled by those same corporations, usually consciously and for profit


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts