On May 6, 2015, the U.S. Department of Justice (“DOJ”) and U.S. Federal Trade Commission (“FTC”) submitted public comments to the U.S. Patent and Trademark Office (“PTO”) commending the PTO for its efforts to enhance patent quality and making specific recommendations on how the PTO may improve its processes. The comments are important both for the content of the recommendations and as an example of the increasing trend of FTC and DOJ concern with issues relating to patents.

The DOJ-FTC comments praise the role of a “well-functioning” patent system in promoting innovation, competition, and consumer welfare, but stated that the patent system only “serves its intended purpose if it promotes and protects innovation and does not inadvertently serve as a barrier to it.” The agencies noted that the quality of patents and the PTO’s work directly impacts competition and innovation, and they emphasized the role of clear notice of patents’ boundaries to both promoting collaboration and reducing “needless litigation.” The agencies also said that they understand that improving patent quality might add costs or delays in patent issuance, but that it was their position that the benefits of improved patents outweighed such costs to private parties. 

The DOJ and FTC expressed their support of certain PTO proposals for improving its processes, including:

  • The expansion of Office of Patent Quality Assurance review, which is a program that allows for additional review and a “second-pair-of-eyes” in certain technical fields and industries;
  • Providing patent examiners with access to improved, automated, pre-examination prior art searches, though they ask that there also be tools that can search sources of non-patent prior art, particularly in the area of business method patents; and
  • Increasing the clarity of the prosecution history to provide clear patent boundaries by
    • Making claim construction explicit in the prosecution record by increased reporting of exchanges between the examiner and applicants that discuss claim meaning and patent scope;
    • Recommending that patent examiners include more detail when recording the summaries of their interviews with applicants; and
    • Encouraging patent examiners to provide more detailed statements of reasons for allowance that, for example, summarize how the granted claims are distinct from the prior art of record.