Saturday, April 30, 2016

Proposal for unsuccessful patent applicants to pay higher fees?

In discussing PatCon6, the writtendescription blog has an interesting discussion about a proposal -- forcing unsuccessful patent applicants to pay higher application fees --:

For example, in his paper, "Loser Pays" in Patent Examination, Neel U. Sukhatme argues that we should create incentives for patent applicants themselves to improve the quality of their applications by forcing unsuccessful patent applicants to pay higher application fees, thereby subsidizing successful applicants. By importing the "loser pays" concept from litigation, Sukhatme argues, we can create "an efficiency-enhancing chilling effect that disincentives weak applications and improves application quality."

Sukhatme's project nicely compliments R. Polk Wagner's analysis several years ago in Understanding Patent-Quality Mechanisms. In Wagner's view circa 2009, bad incentives on the part of applicants (as well as PTO examiners) was a root cause of the problem of low patent quality. Low patent quality, Wagner wrote, "is supported by a series of powerful incentives, including incentives that encourage patentees to draft patent applications that effectively obscure the true scope of the invention and its relationship to the prior art." Sukhatme's suggestion to require applicants to pay for their drafting failures follows Wagner's advice for improving patent quality: ensure that patentees have "strong, unequivocal incentives to seek patents that clearly meet the standards of patentability, that are explained in the context of the prior art, and that draw clear and unambiguous lines around their subject matter[.]" So maybe we're making Progress.


This "discouragement" would only make sense if a large fraction of patent applicants were deliberately obfuscating their claim drafting.


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