Part 2 of 3 – Perspective on the Patent System Today and “Bad Patents”

II.  The Patent System Today

A critical feature of the patent system is access for all innovators.  From Fortune 100 Companies to universities to independent inventors in their garages, the current system allows many people access to patents.  Why are we so intent on pushing through even more legislation rather than embracing the tools already provided by the current law first?  Having a flexible system allowing the grant of patents and the subsequent use as the owner sees fit, instead of the perceived need to require everyone who gets a patent to practice the invention.

There is no doubt about the fact that bad patents exist.  Also, companies exist to make money off of others.  But it seems that targeted patent reform against “patent assertion entities” (PAEs) or “non-practicing entities” (NPEs) or “patent trolls” possesses an even greater risk. The potential loss of the innovation that comes from independent or sole inventors, small businesses, Universities and even large companies seems to be thrown by the wayside without much consideration by adoption of more legislation instead of embracing what currently exists.  The discussion of reform is causing a shift in the discussion away from some existing and potential solutions.

To begin, I find that most of the proposed legislation just further complicates an already particularly difficult area of the law.  In a manner we have grown accustomed to in this day and age, Congress is considering muddying the water with “transparency” and “litigation integrity” and “fee shifting” schemes as ways to help protect innovation.  Are we sure additional legislation will protect innovation?  Innovation (and protection of that innovation) is a complex, difficult balancing act that requires significant investment to get a product from an idea to commercialization.  The system and process needs to be reasonable for large corporations and the independent investors.  Many of the steps along the way include great financial, reputational, and developmental risk that can be unpredictable at times.  Unless that risk is balanced by the benefits of a consistent, somewhat predictable patent system, the investment in innovation that drives the economy likely will dry up.  Before we add even more uncertainty by adding complicated law on top of already complicated law, I think it is worth stepping back and making sure we have considered all our alternative solutions, especially those that already exist.

III.  The USPTO can Limit the Issuance of “Weak” and “Bad” Patents

Maybe we should be asking how certain patents as intellectual property came to exist instead of worrying so much about who “owns” a patent?  If at least some of the patent trolling issue is based on some version of a “bad patent,” I’d like to see some of the reform to come at the USPTO level.  The agency is tasked with the promotion of innovation through our patent system, but bad patents are at the heart of many trolling issues.  The USPTO is supposed to be the government’s experts in the field.  So why are we worried about “who” and not more focused the quality of “what” in the patent itself?  Can’t we call on the USPTO minimize the issuance of such “bad patents?”  Instead of worrying about potentially limiting and hurting the ability to license and contract around a patent (even if unintentionally), let’s focus on the patent itself.  Licensing and other contractual situations are sometimes the only way an independent inventor can commercialize their innovation.  Without the flexibility to use their property in this manner, innovation may be severely stunted without incentive for some of the most innovative individuals and small businesses.