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WSJ on problems at the USPTO and Kappos nomination

By Lawrence B. Ebert, Esq.

Note the article by Amy Schatz at WSJ titled: Backlog, Budget Woes Await Patent Chief.

The second paragraph states:

Many companies are complaining that the patent office is approving too many weak patent applications, issuing patents on less-than-novel ideas or inventions that belong to another party. Because even weak patents are costly to challenge in court, they say the effect is to stifle real progress.

The "patent quality" debate goes back to Quillen and Webster. As to why this argument is not on a firm foundation, see
PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE which notes:

This discussion began with papers of Quillen and Webster that
suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.

See also
http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20186.pdf

Of the nomination of David Kappos, Schatz wrote:

People who know him say Mr. Kappos is likely to seek an overhaul of the patent office's technology to speed the process of uncovering evidence that either supports or challenges patent applications. He may also propose changes in the approval process to make it more open to public input and scrutiny. Patents and patent applications are public records, but patent examiners don't use information submitted by outside parties when they are evaluating applications.

But some inventors and small businesses have raised concerns about Mr. Kappos, at least partly due to his long tenure at IBM, the leading filer of patents in the U.S. Some intellectual-property bloggers have criticized him for publicly supporting better-quality patents even as IBM has filed some applications they consider questionable. IBM declined to comment.

**Of the "patent quality index", see
http://ipbiz.blogspot.com/2009/07/patent-quality-index.html

***LBE wrote an email -->

I enjoyed your article on current issues at the Patent Office. [Backlog, Budget Woes Await Patent Chief ]

Of your text -- Patents and patent applications are public records, but patent examiners don't use information submitted by outside parties when they are evaluating applications. -- (Most) issued patents are publicly available, but patent applications are publicly available only at the point 18 months after filing, and there are provisions for some patent applications not to be published at all (for people who don't file outside the US). Rule 99 provides for outside parties to submit prior art to the Patent Office, which art can be considered by the examiner in evaluating an application.

Of Mr Kappos, you might find posts on my blog of interest:

http://ipbiz.blogspot.com/2009/07/ibm-asserting-its-invulnerability-to.html

http://ipbiz.blogspot.com/2009/06/kappos-and-ibm-in-may-2009.html

http://ipbiz.blogspot.com/2009/04/iam-on-ibms-kappos-not-touching.html

http://ipbiz.blogspot.com/2007/10/ibms-apparent-schizophrenia-on-patent.html

http://ipbiz.blogspot.com/2009/04/ibm-to-withdraw-second-patent.html

http://ipbiz.blogspot.com/2007/03/its-time-for-patent-reform-ibm-style.html

http://ipbiz.blogspot.com/2006/10/ibm-patent-policy-apparent.html

http://ipbiz.blogspot.com/2009/06/kappos-lemley-merritt-and-271blog.html

http://ipbiz.blogspot.com/2009/07/sarcasm-or-stupidity.html

http://ipbiz.blogspot.com/2009/07/pa tent-quality-index.html

Full post as published by IPBiz on July 22, 2009 (boomark / email).