The principal task of the U.S. Patent & Trademark Office ("Patent Office" or "Agency") is to determine whether an invention merits a reward of a patent.' There is growing consensus that the Patent Office is failing at this task. Many believe that the Agency allows too many "bad" patents that unnecessarily drain consumer welfare, stunt productive research, and unreasonably extract rents from innovators. The Patent Office's overgranting tendencies have been the subject of multiple reports by the National Academies and the Federal Trade Commission. Patent quality concerns have energized the Supreme Court into taking a renewed interest in substantive patent law and driven Congress in 2011 to enact the first major patent reform act in nearly sixty years.
Although there is widespread agreement that invalid patents impose significant costs on society, there is little consensus as to how best to fix the patent system. At first glance, the solution seems straightforward: the Patent Office needs to do more to ensure it awards patents only to those inventions that deserve them. A seemingly promising start-and one that is at the forefront of current policy discussions-is to give patent examiners more time to evaluate applications. On average, a U.S. patent examiner spends only eighteen hours reviewing an application, which includes reading the application, searching for prior art, comparing the prior art with the application, writing a rejection, responding to the patent applicant's arguments, and often conducting an interview with the applicant's attorney. If examiners are not given enough time to evaluate applications, they may not be able to reject applications by identifying and articulating justifications with appropriate underlying legal validity.
Michael D. Frakes and Melissa F. Wasserman,
Irrational Ignorance at the Patent Office,
72 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol72/iss3/4