This week, together with Public Knowledge and Engine, EFF submitted written comments to the Patent Office regarding its Patent Quality Initiative. We urge the Patent Office to ensure that this program actually reduces the number of invalid patents being issued. Its quality efforts should serve the public interest, not the special interests of patent applicants.
We have written before about the Patent Office’s problem with software patents. The Patent Office does a very poor job searching for prior art and protecting the public from vague and overbroad claims. There are good reasons to think that software patents are a bad idea even if applications are reviewed carefully. But they cause even more harm when the Patent Office does a bad job. Once issued, invalid patents are very expensive to formally invalidate. Patent litigation can cost millions of dollars—an unreachable sum for members of the public wishing to reclaim property that ought to have been the public’s from the start.
When the Patent Office announced the Patent Quality Initiative, it seemed like a promising first step toward slowing the flood of low-quality patents. Unfortunately, the Patent Office appears to be focusing instead on improving the ‘customer’ experience of applicants. This is a deeply misguided approach that prioritizes prompt issuance over quality.
The Office of Inspector General recently released a report that sharply criticized the Patent Office for failing to monitor patent quality. In the wake of this report, it is especially disappointing to see the Patent Office transform what was supposed to be a quality initiative into a ‘customer service’ initiative. In prioritizing customer service, the Patent Office is behaving like a captured agency that serves special interests of those that appear before it rather than the public interest as a whole.
The Patent Office currently issues tens of thousands of software patents per year after conducting only a cursory review of applications. The result is a flood of low-quality, vaguely worded patents that act as a tax on innovation. The Patent Office needs to diligently apply new Supreme Court law that prohibits abstract software patents, and do a much more thorough review of the prior art. We strongly urge the Patent Office to focus its energy on creating data, examiner training, and enhanced quality reviews targeted at preventing the issuance of invalid patents. Only then can we create a patent system that serves its true customers: the public.