Michelle Lee: Speaking Truth to Patents: The Case for a Better Patent System
The suggestion of patents as monopoly arose
Now, critics of our patent system point to the patent's grant of exclusivity as a monopoly. And they are right to a point. That grant of exclusivity inhibits competitors and allows the patent owner to charge supra-competitive prices, but only for a limited time. But we accept the monopoly because of our strong conviction that the long-term benefits to society outweigh the costs. Innovation today means that we will have even more innovation tomorrow. And the higher prices we pay for patented goods and services today are an investment for the future.
One notes that a "right to exclude" is not a "right to make."
The matter of patent quality is now a big deal
In addition to the measures the Administration is taking now, the PTO has a longer-term role to play in ensuring the health of the patent system, and that has to do with improving patent quality. Issuing high-quality patents can play a significant role in curtailing abusive patent litigation over the long run.
To that end, I have made improving patent quality a top priority for the PTO.
That may sound familiar to you, and that’s because improving patent quality has always been at the core of the PTO’s mission. But, for too long, due to uncertain budgetary conditions and limited resources, the PTO has had to make do with less. Despite our best intentions, we’ve had to accept trade-offs between quality and application backlog and pendency, forcing us to cut programs and shift resources to maximize output without sacrificing quality.
At the end
In closing, I’d like to revisit something I said earlier. As what used to be a small world of patent law has become larger, more visible, and more consequential—to our economy and the world—we must acknowledge that the patent system doesn’t belong to a narrow set of patent stakeholders, but to all of us. As specialists, experts, and repeat players in this field, we must acknowledge not only the strengths of our patent system (and there are many) but also those places where it falls short of its goal to promote the Progress of Science and the useful Arts.
Fixing those areas needing improvement is not a “pro-patent” thing to do, or an “anti-patent” thing to do. It doesn’t mean rewriting the terms of the bargain underlying the patent system as set forth in the Constitution. It isn’t going to break the patent system.