Tuesday, April 29, 2008

NYT: Patent Reform "Boon To Lobbyists", Dudas Claims Applications Are Getting "Worse and Worse"

In a new article, the New York Times discusses some divergent perspectives on the patent reform act, noting that over the last 15 months, the Coalition for Patent Fairness and the Coalition for 21st Century Patent Reform collectively spent $4.3 million lobbying on the legislation (CPF = $2.5M, 21CPR = $1.8M). This number doesn't include amounts spent by other groups and individual corporations that could easily double this amount.

In addition to lobbying, the article also focused on the ongoing debate over inequitable conduct. One noteworthy statistic cited in this regard is specifically aimed at pharmaceutical patents:

In the last 15 years, the United States Court of Appeals for the Federal Circuit, which handles patent cases, has affirmed findings of inequitable conduct in at least 40 cases, including 14 that involved pharmaceutical or health care products. Similar findings have been issued by federal district judges in an unknown number of cases that were not appealed.
One of the more interesting points in the article were the comments of USPTO Director Jon Dudas, who had the following to say:
We are getting more and more unpatentable ideas, worse and worse quality applications. Historically, in the last 40 years, the allowance rate — the percentage of applications ultimately approved — hovered around 62 percent to 72 percent. It went up to 72 percent in 2000, but dropped to 43 percent in the first quarter of this year.
This comment follows his statement at an IP Symposium earlier this month (reported by EE Times), in which he stated:
We've seen a problem with quality . . . [I question whether the current system is] making it too easy for people who want to file poor [patent] applications?
Also, compare this to the comments he made to IAM last month on patent quality:
[W]e’ve determined the quality of patents granted has been improving, and we expect this to continue because of current and future quality initiatives. A major concern we have at the USPTO--and it is a concern I have heard from many IP offices around the world--is the room for improvement in applications coming through our door.
Incidentally, IAM had a great article that discussed the "patent quality debate", where various IP leaders commented on patent quality (to see a brief except, click here). Quite interestingly, Alison Brimelow, President of the European Patent Office noted that, in her view, "[i]n spite of anecdotal evidence to the contrary, there is no hard empirical evidence that patent quality has substantially deteriorated in the last five or 10 years."

1 Comentário:

Anonymous said...

I'm puzzled by the comments of Master Dudas. Dudas never prosecuted a single patent application before the very agency that he now steers - how could he possibly understand "patent quality" beyond what some of his minions might spew up the chain? The quality of the patent applications filed today are no different now than 5, 10, 25 or 50 years ago. Instead, it is a convenient horse carcass to flog.

Part of the problem the agency has had is that two recent and prominent "commissioners" - Lehman and Dudas - were lacking a modicum of experience in patent prosecution. IMO, the "commissioner" should have at least some appreciation for what a patent prosecutor must face, as well as the examiner acting as the public's gatekeeper. Until THAT happens, the pronouncements from the likes of Dudas that patent application quality is "poor" rings hollow - since Dudas does not have the experience to know what is a "quality" application and what is a "poor" application. My sense is that judgments of "quality" and "poor" are more or less a function of the perceived importance of the invention rather than the substantive quality of the application and the claims contained within the application.

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