Here’s a multiple choice test.
The U.S. patent system is (a) a great institution because of the protection it gives to invention and intellectual property; (b) a mess because it fails to protect patent owners from extortionate threats by so-called patent trolls looking for vague language they can use as the basis for infringement lawsuits; (c) trying to do the best that it can under recent reforms to address legitimate questions of infringement and protect the little guys from big corporations; (d) not doing enough for these issues and in need for further reform legislation; and (e) all of the above.
The answer is “all of the above.” And the Senate Judiciary Committee may hold the key to whether all the competing voices in the patent arena can be reconciled in pending legislation very cutely named the PATENT Act.
But maybe the problem is not how balanced the law can be made, but how well it is carried out.
Last year the U.S. Patent and Trademark Office (PTO) came under fire because it did not adequately supervise the work hours of thousands of patent examiners allowed to work from home, leading to various documented abuses exposed by whistleblowers. The first response of the Patent Office was to cover up the extent of the problem. When the Commerce Department inspector general finally got the facts, the Patent Office promised to reform.
Now the Commerce IG has returned to the subject, finding that the Patent Office does not adequately supervise the quality of patent examinations, leading to the issuance of faulty patents that result in costly litigation. This time the complaints came from corporations caught up in defending their property rights and inventors seeking to patent their work.
The audit by Inspector General Todd Zinzer concludes that the Patent Office’s weak oversight “make[s] it difficult to distinguish between patent examiners who are issuing high-quality patents and those who are not.”
“High-quality patents are generally considered to be those whose claims clearly define and provide clear notice of their boundaries, while low-quality patents are those that contain unclear property rights, overly broad claims, or both,” the inspector general wrote.
The IG found that telecommuting work practices it had criticized last year, such as “end-loading” and “mortgaging,” were continuing to undermine quality and that the Patent Office was doing little to stop them.
“Mortgaging” allows patent examiners to get credit for their work before it is reviewed by supervisors, while “end-loading” refers to a practice of allowing work to pile up then rushing through it at the end of each three-month quarter.
The IG found that between fiscal 2009 and fiscal 2013 the agency gave 99 percent of its examiners a “quality” rating that qualified them for bonus payments, but failed to keep records of the frequency with which supervisors reviewed patents for quality and also of the frequency of errors discovered in the review process. It concluded that the system for determining the quality of patent examiners’ work was “ineffective” and the lack or record-keeping made it hard to identify weaknesses in the patent system.
Once again the PTO has promised to reform. But as The Washington Post has noted, the latest IG report only strengthens the impression that the Patent Office’s leadership is more concerned with quantity than quality. While it is considering patent reform legislation, Congress should take a hand in straightening out the apparently abysmal performance of an office that is key to the continued productivity of the American economy.