The Patent Office sometimes issues a patent in error, and, given the
volume of applications and the difficulties inherent in the
examination process, that's not surprising.
But in passing the America Invents Act (AIA), Congress recognized
that bad patents burden innovation rather than encouraging and
rewarding it. Litigation of patents that are or may be invalid or
entitled to narrower scope than asserted is costing companies--and
ultimately consumers--millions in legal fees and settlements. One of
the ways Congress sought to minimize these effects was to make it
faster and easier to bring potentially wrongly issued patents to the
Patent Office’s attention for review.
The majority of issued patents are never asserted or licensed, let
alone litigated, and they theoretically provide the public with
useful knowledge as soon as they are published. But even these
“passive” patents deter others from using the ideas claimed and
building on them if they wish to avoid any risk of being accused of
Perhaps only a small percentage of issued
patents are wrongly issued. But when patents are asserted and found
invalid only after years of expensive litigation, it reflects badly
on the whole patent system. This undermines the public’s confidence
that patents are only issued for real inventions.
The Patent Office should do everything in its power to encourage
well-supported petitions challenging patent validity.
First, such challenges help the Patent Office recognize which
of numerous issued patents are especially relevant to
competition in the marketplace. Sometimes, as with a blockbuster
drug, a patent examiner can understand that a patent
application is potentially of enormous value to the applicant
and detrimental to its competitors. But this is not necessarily
true in the software and electronics fields. In the worst cases,
some of the patents causing Silicon Valley companies pain are
patents that only became dangerous years after the issued
because their claims can now be read to cover things that their
inventors never actually contemplated. A petition tells the
Patent Office not only that a specific patent may well be
invalid but that it is affecting competition and has the
potential to chill or tax innovation.