News of patent anarchy are ringing throughout the land citing the troubles with the U.S. Patent and Trademark Office (USPTO) both for its long processing times and cries that it issues too many “unworthy” patents, which fall into the hands of the evil Patent Trolls who hold up legitimate businesses for ransom.
While the troll of lore lived under a bridge and extorted money from travellers, so-called “patent trolls” send cease-and-desist letters warning companies that their products are infringing on patents, and asking for payment. (Ironically, Peter Detkin, former assistant general counsel at Intel Corp. credited with coining this term now works for Intellectual Ventures LLC, a company that has been spending millions to buy up patents.)
It is clear that the USPTO believes that applicants should shoulder some blame for the its own troubles, which include a backlog of one million pending patents and record pendency times. While this seems a little like Disneyland hiring one person to work the front gate and then blaming the visitors for the long line to get in, the USPTO is certainly not the only one trumpeting patent woes.
BusinessWeek took up the issue recently in its article The Patent Epidemic claiming overpatenting is wasting companies’ money and slowing the development of new products. The article notes that in a recent Supreme Court case, two dozen intellectual-property law professors have filed amicus briefs claiming that massive overpatenting “creates an unnecessary drag on innovation,” forcing companies to redesign their products, pony up license fees for technology that should be free, and even deter some research altogether. Sounds good but it would seem that one person’s “massive overpatenting” is another’s “claim to rightful ownership.”
BW also points to “the evisceration of the obviousness test by the Federal Circuit Court of Appeals” as one of the primary causes of evil patenting. That, it is claimed, has led to a flood of low-quality patents being granted, and made it difficult to challenge a patent in court on the ground of obviousness.
In the case KSR International Co v Teleflex Inc. (04-1350), the Court will hear whether the Federal Circuit erred in holding that a claimed invention cannot be held “obvious”, and thus unpatentable under 35 USC § 103(a), in the absence of some proven “teaching, suggestion, or motivation that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed.”
Defenders of the rule say use of hindsight can be prevented only by requiring documented evidence that an idea was easily available. Others note that new technology emerges all the time that isn’t found in published journal. Either way, the interest in patents stems not from ineffective patent rules but heightened financial stakes as we move into a knowledge economy. In a land where ideas are king, great battles will be fought to take the crown.
