Over the last several years, much has been written about the United States’ broken patent system. Business and technology leaders have lamented that the system no longer functions to protect innovation, as originally intended, and is in fact now being used by a select few to stifle innovation. Some have gone as far as saying we should get rid of the patent system altogether.
While the origins of the current anti-patent climate are complex, a potential contributing factor is the proliferation of so called “low quality” patents. While there is no clear or precise definition of what constitutes a low quality patent, many point to the explosion of design patents, the sometimes aggressive patent strategies pursued by large tech companies, and the proliferation of non-practicing entities (“patent trolls”) as evidence of a system that embraces and even rewards quantity over quality.
Examples of low quality patents often cited by critics include those that are egregiously overbroad, badly written, or overly simplistic and have somehow survived the examination process. Despite the apparent lack of quality, companies can and are using these types of patents as effective weapons to curb competition or to extract large sums of money in litigation.
There have been attempts by congress and special interest groups to mitigate the perceived lack of patent quality through legislation. Most notably, the America Invents Act, which created the PTAB and post-grant procedures, was signed into law in 2011. However, several other bills (the PATENT Act, the Innovation Act) remain in limbo.
The USPTO has also taken notice of the public frustration with the patent system, and as a response, has come up with the Enhanced Patent Quality Initiative, or EPQI, which it implemented in 2015. The goal of the initiative is to increase patent quality by focusing on three pillars: excellence in work products, excellence in measuring patent quality, and excellence in customer service.
The most challenging issue facing the PTO’s EPQI is the creation of a clear definition of what quality is and how it should be measured. One way the PTO is tackling this issue is by soliciting applicant feedback on the quality of the examination process through its Master Review Form (MRF). The PTO considers the clarity and correctness of examination to be a key aspect of how overall quality is measured.
The MRF is used to evaluate office actions and focuses on assessing the clarity of the examiner’s reasoning, while maintaining focus on addressing the correctness of the examiner’s action. Because the MRF is electronic, the office will be able to capture three to five times more data than ever before. A robust data set will make it easier to identify issues and trends on both an individual application level and an art unit level. The information captured in the current MRF will help define and fine tune quality metrics for a new form to be distributed in 2017.
The PTO recognizes that defining, measuring and improving patent quality is an ongoing process, and it will likely be several or years before any meaningful conclusions can be drawn from its current initiatives. However, the EPQI represents a fairly comprehensive first step towards addressing many of the quality issues facing the U.S. patent system.