From the Alliance

Dec. 9, 2019

The Hill: The Real US Patent ‘Crisis’ by Brian Pomper

Stakeholders throughout the patent system agree that patent quality is a good thing. We all want the U.S. Patent and Trademark Office (USPTO) and its examiners to have sufficient resources to perform their exacting work, to keep patent fees from being diverted to other uses and to improve predictability in the patent system. So at the Innovation Alliance, a group of R&D-focused technology companies for which I serve as executive director, we supported the Senate Judiciary Subcommittee on Intellectual Property’s decision recently to hold a hearing on patent quality.

While the hearing was informative, unfortunately, proponents of weaker patent rights, primarily incumbent corporate interests seeking to lower their patent licensing costs, appear to be trying to distort the issue of patent quality to serve their own ends. The term “bad patent” or “poor quality patent” is now often used as shorthand to denigrate a patent that may in fact be strong on substance, but that stands in the way of someone who wishes to use the invention protected by the patent without taking out a license to do so.

These anti-patent interests cite statistics about the percentage of patents declared invalid in litigation to claim that the United States is in the midst of a patent quality “crisis.” But these statistics involve only the small minority of patents that are reviewed in court and ignore the vast majority of patents that are valid and never seriously challenged.

Experts have noted that the overall patent litigation rate has been remarkably steady for nearly a century, at less than two litigations per 1000 patents issued. That does not at all suggest there is a “crisis” in patent quality that has resulted in a disproportionate number of lawsuits or patents being invalidated.

The true crisis in our patent system is the dire state of Section 101 jurisprudence, the area of law determining what is and what is not eligible for patent protection. For nearly 150 years, Section 101 of the U.S. Patent Act was interpreted to allow inventions to be patented across broad categories and subject matters. These patents incentivized American R&D and innovation and led to countless technological and medical breakthroughs.