Fees for patent review guts America Invents Act

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 patent infringement.

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.  

Patent improvements
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.