Commerce Department Renews Support for AQS's in S. 1145

Carlos Gutierrez from the Department of Commerce sent a letter today to Arlen Specter, expressing "strong support" for a "key element" of S. 1145: Applicant Quality Submissions (AQS).

The Administration strongly supports the AQS provision in the bill in its current form and believes that enactment will prove to be the strongest step toward improved patent quality. By reducing the number ofpoor quality and imprecise applications, applicant quality standards will result in dramatic reductions in patent pendency and backlog, as well as reduce the likelihood of excessive litigation. The current misalignment of information incentives slows and degrades the patenting process.

Interestingly, the PTO appears to charge rejected applicants with draining PTO resources that would be better spent on examining "important innovations." Of course, the context of "important innovations" is unclear. However, it is clear that the PTO is expecting applicants to demonstrate their knowledge of the art before considering a patent application:

There is no one who has greater opportunity, information, or incentive to explain why an application deserves a patent grant than the applicant. There has been a sharp decline in the percentage of patents allowed, due in part to comprehensive internal quality improvements. However, the USPTO is now applying more than 55 percent of its examination resources to examining applications that do not warrant a patent. In order for additional quality and efficiency gains to accrue, the system must focus on the quality of applications. Stated simply, our innovation system can no longer afford the time and the cost of heavily subsidizing poor quality patent applications, which crowd out our most important innovations. Applicant quality standards are essential to improving and expediting the process by which new and innovative ideas become reality.

Also, the PTO made clear that changes to inequitable conduct must be accompanied by "strong provisions" requiring AQS - anything short of that would "invite fraud on the patent system":

[T]he Administration strongly opposes any statutory changes to the doctrine of inequitable conduct in the absence of a strong provision requiring Applicant Quality Submissions. Applicant quality standards and inequitable conduct reform are inextricably linked. Diminishing the penalties for misrepresenting facts before the United States Patent and Trademark Office (USPTO) without also increasing the robustness of the process for eliciting quality information from applicants may lead to poorer quality applications, in tum increasing the difficulty of conducting accurate examinations. Inequitable conduct reform alone, without Applicant Quality Submissions, would merely invite fraud on the patent system.

Read/download the letter here (link)