Saturday, September 15, 2007

New Jersey, not Wisconsin, got it right on H.R. 1908

The following post was submitted to Wistechnology network on September 15:

Some folks might believe Congress is to be criticized, not praised, for the present state of the USPTO. In the 1990's, Congress began fee diversion from the USPTO, so that monies needed by the USPTO to conduct its affairs were re-directed into general revenue. The backlog of pending applications increased dramatically. Sadly, the current efforts by Congress in HR 1908 do nothing to address the present deficit of resources at the USPTO.

Of --the goal of Congress is to weed out poor-quality patents--, one notes a significant irony in the use of the word "quality." The report of that National Academy of Sciences (NAS/STEP) did not actually find evidence of a decline in patent quality. Page 3 of the report states: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative." Congress should not be acting on tentative conclusions. Moreover, recent empirical evidence suggests that the patent grant rate is much lower than that represented to Congress by various academics. See
Congress ought to be up-to-speed on the recent findings. Furthermore, even if there were numerous poor-quality patents for Congress to weed-out, the quality approach, as defined by Deming, would be to improve the production step (that is, patent examination) rather than to add an inspection step (for example, post-grant review). It is sad to see a non-quality approach taken in the guise of improving "quality."

Of --Gulbrandsen said provisions related to damages and review periods for patents after they are granted remain a problem from WARF's perspective--, one notes that H.R. 1908, in enhancing the burden on patentees in inter partes re-examinations (which can take place at any time during the patent lifetime) places the issue well beyond that of a "review period." This burden will be harshest as to small inventors and universities, who don't have substantial resources to defend patents.

In correctly assessing the state of affairs, it is the New Jersey Congressional delegation, including Democrat and Ph.D. holder Rush Holt and most Republicans, who "got it right."


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