01.15.17

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America Invents Act Improved Patent Quality, But Right Wingers Threaten to Make It Worse Again

Posted in America, Patents at 10:54 am by Dr. Roy Schestowitz

Rumours suggest that Donald Trump will add Randall R. Rader to his swamp

Randall R. Rader
Photo from Reuters

Summary: The past half a decade saw gradual improvement in assessment of patents in the United States, but there is a growing threat and pressure from the patent microcosm to restore patent maximalism and chaos

The USPTO has been gradually improving under Michelle Lee, who sought positive reform and is said to be on her way out after Trump’s inauguration. The former Director, David Kappos, is now lobbying (in exchange for money!) to make things worse again. It looks as though Trump is about to blow away any progress with Rader as Director (or similar position). Rader is not only corrupt but is also a software patents proponent.

The following new post by Jason Rantanen links to this new report from the USPTO:

USPTO Releases its 2016 Performance and Accountability Report

I’m pleased to announce that the USPTO has published its Performance and Accountability Report (PAR) for fiscal year (FY) 2016. The PAR serves as the USPTO’s annual report, similar to what private sector companies prepare for their shareholders. Each year the USPTO publishes this report to update the public on our performance and financial health.

[...]

We will continue efforts in the Enhanced Patent Quality Initiative, which is a multifaceted initiative that builds on past efforts and includes future programs aimed at improving the accuracy, clarity, and consistency of patents; continue implementation of the patent dispute resolution portions of the AIA; meet the wave of legal challenges to the USPTO’s interpretation of the AIA and its regulations implementing the statute; develop outreach at both headquarters and regional offices; expand on dissemination of data; attain and maintain full sustainable funding; and provide IT support for a nationwide workforce with a “24/7/365” operational capability.

Watchtroll, in the mean time, being the software patents proponent that the site always is, suggests changes that would inherit bad elements of the EPO, where software patents are habitually being granted in defiance of the rules (more so under Battistelli than before, to the point where legal firms say it’s easier to get software patents at the EPO than at the USPTO). To quote from the summary:

In summary, there is a plausible case that the US law on obviousness is indeed compatible with the above-explained EPO problem-and-solution approach. It could even be said that the steps of the problem-and-solution approach appear to have been inspired by US law and practice!

Under present working styles, USPTO examiners concentrate on the claims and spend little or no time reading the description. If they are to initiate obviousness rejections using the problem-and-solution format they would have to change habits and consult the description to locate any effects related to the distinguishing features.

I remark that the problem-and-solution approach is not a new statement of the law of obviousness: it is a statement of practical steps to be taken by a practitioner in order to come to an objective assessment of obviousness/non-obviousness compatible with the Statute Law and Case Law. It is an approach designed for large organizations like the USPTO who need to maintain uniformity.

[...]

The US Law on obviousness is indeed compatible with the EPO problem-and-solution approach. The USPTO, unlike the EPO, may be bound by the ratio decidenti of superior court decisions, but this should not impede completing the MPEP with instructions like the problem-and-solution approach. All that is needed is to arouse interest in potential long-term advantages for the USPTO notably the perspective of increased quality. Application of the approach does not imply any change in the Statute or Case Law, simply a determination to complement the current piecemeal guidelines by a coherent methodology.

It follows that the USPTO not only could adopt an approach for assessing obviousness like the EPO problem-and-solution approach, but in my view the quest for quality is a good reason why it should do so.

A guest post at Patently-O, composed by Professors Arti Rai (Duke) and Colleen Chien (Santa Clara), is titled “Patent Quality: Where We Are” and it names the legacy of Kappos, which is similar to that of Battistelli (compromising patent quality to artificially make ruinous ‘gains’):

When former USPTO Director David Kappos took the helm in 2009, budgetary strains and application backlog demanded immediate attention. Even so, then-Director Kappos pushed through redesign of the agency’s IT system, gave an across-the-board increase in time to examiners, adjusted count allocation so as to reduce incentives for rework, and emphasized quality improvements through international worksharing, industry training, and the creation of the Common Patent Classification system. Then, with the passage of the American [sic] Invents Act of 2011, the agency’s budgetary position stabilized and the stage was set for further focus on quality. The backlog subsided, with the queue of patents reduced by 30% over the last eight years, according to statistics released by the USPTO.

It was only after the America Invents Act (AIA), which then created PTAB, that patent quality started to make more sense. We hope that even in the era of a Trump Administration the same kind of trend will persist, though we are not particularly optimistic about it.

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