EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

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 this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. Startpage and System1: Lying for Almost a Year and Nowadays Making Things Personal/Ad Hominem (Shooting the Messengers)

    As more people become aware of what a scam Startpage is (and has clandestinely been for nearly a year) the strategy seems to be further obfuscation and even personal attacks (demonising the critics/exposers)



  2. When You Cannot Convert GNU/Linux Into Windows (Mono, DLL Files Etc.) You May Try to Make It Subservient to Windows (Vista 10 and WSL)

    Microsoft needs people outside Microsoft to promote WSL; some of them have already entered GNU/Linux companies



  3. GitHub is All About Control

    GitHub is not a platform for sharing and collaboration but social control and manipulation of the Free software community



  4. 2019 in Review: Worst Year Ever for Software Freedom

    A look back (and ahead) as the year's end fast approaches, marking the end of a mostly bad year



  5. Links 15/12/2019: Hacker-Friendly Hardware Success Stories and Mozilla Woes

    Links for the day



  6. European Patents Losing Their Appeal, Lustre and Glamour

    Years of assaults on EPO staff — including EPO judges — have taken their toll and the quality of patents is nothing like it used to be



  7. Software Freedom and The U.S. Constitution

    “We need to stand for the freedom to not use the software — we need to enjoy that freedom without giving up the rest of the existing Free software ecosystem.”



  8. IRC Proceedings: Saturday, December 14, 2019

    IRC logs for Saturday, December 14, 2019



  9. Links 15/12/2019: Wine 5.0 RC1 Released, KDE Frameworks 5.65.0, Qubes OS 4.0.2 RC3

    Links for the day



  10. It Matters a Lot What You Call the System

    Why the best name for the best operating system would be "GNU", not "Linux" (media has twisted the words so as to marginalise GNU and its politics/philosophy)



  11. Only the EPO Goes as Far as Bribing Publishers (the Media) to Promote Software Patents and Publish Fictional Stories

    The world’s patent offices are growing tired of granting software patents which courts later toss out (because these patents are not valid); not only does the EPO advocate such patents — typically using a bundle of buzzwords — it’s also bribing the media to help



  12. EU Needs to Show That It Cares About SMEs and Not 'European Champions' That Are Actually Foreign Monopolies

    Judging by the EU’s nearly blind and unconditional support for the management of the EPO — no matter how abusive and corrupt it has gotten — one has to wonder if the ex-EU official in charge of the EPO reveals a profound democracy deficit as well as growing dangers to Europe’s businesses — the productive firms to which patent maximalism often represents far more risk than opportunity



  13. Guest Article: The Free Software Movement Should Come Out From the Box

    "From now onwards we have to think from a user’s rights perspective and mobilise users of Free software. They should know what rights they ought to get."



  14. IRC Proceedings: Friday, December 13, 2019

    IRC logs for Friday, December 13, 2019



  15. Links 13/12/2019: QEMU 4.2.0, GNU Guile 2.9.7

    Links for the day



  16. Links 13/12/2019: Zorin OS 15.1, Vim 8.2

    Links for the day



  17. Linux Foundation Has Outsourced All the Licence Compliance Stuff to Microsoft, a Serial GPL Violator

    OpenChain Specification/OpenChain Project and Automated Compliance Tooling (ACT) are yet more examples -- the latest of many -- of the Linux Foundation being outsourced to Microsoft, not only for code but also documentation and hosting



  18. IRC Proceedings: Thursday, December 12, 2019

    IRC logs for Thursday, December 12, 2019



  19. Copyleft: Keeping Code Free

    Now that news about "Linux" is dominated by promotion of proprietary software we ought to remember what perpetrators of such a strategy seek to eliminate



  20. Plans That Worked, Plans That Failed

    "I am still looking for good news, but the more good I try to find, the more nastiness I uncover. This is by far, Free software's worst year ever. 2019 Sucks!"



  21. Links 12/12/2019: KDE Applications 19.12, Qt Creator 4.11, New VirtualBox

    Links for the day



  22. Brand Dilution in Action

    Microsoft's proprietary software which spies on people and businesses is getting a "free ride" on the "Linux" brand; and nobody seems to care, nobody seems to notice how perverse that it



  23. At the EPO Money -- Not Quality -- is King

    Financiers are ruining quality



  24. The EPO's Strategic Failure 2023

    Potemkin social dialogue



  25. IRC Proceedings: Wednesday, December 11, 2019

    IRC logs for Wednesday, December 11, 2019



  26. EPO Promoting Software Patents in Countries Where These Are Illegal

    The EPO's vision of 'unitary' software patents (patents on algorithms in countries that disallow such patents, as per their national laws) won't materialise, but in the meantime a lot of Invalid Patents (IPs) are granted in the form of European Patents (EPs) and this is wrong



  27. We Support GNU and the FSF But Remain Sceptical and Occasionally Worry About an RMS-less FSF

    Richard Stallman (RMS) is not in charge of the FSF anymore (it's Stallman who created the FSF) and there's risk the decisions will be made by people who don't share Stallman's ethics or the FSF's spirit



  28. Links 11/12/2019: Huawei Lobbied by Microsoft (Because of GNU/Linux) and Microsoft Still Googlebombs Linux to Promote 'Teams'

    Links for the day



  29. Links 11/12/2019: Edge Native Working Group, CrossOver 19.0 Released

    Links for the day



  30. Instead of Fixing Bug #1 Canonical/Ubuntu Contributes to Making the Bug Even More Severe (WSL/EEE)

    Following one seminal report about Canonical financially contributing to Microsoft's EEE efforts — celebrated openly by GNU/Linux opponentsclosing bug #1 Ubuntu basically decided not that it was fixed but that it would no longer attempt to fix it (“wontfix”)


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