FOR the past few years, patents have been under attack from many quarters. The U.S. Supreme Court has taken cases on the patent eligibility of gene sequences, diagnostic methods, business methods and software. Academics and economists are repeatedly questioning the value of patents in the areas of business methods and software. Apple and Samsung are suing each other on four continents over patent infringement.
And the congressional passage of the America Invents Acton Sept. 16, 2011, signaled changes to the patent system demanded by the legislative branch. Even President Obama is engaged in the new dialogue on the criticality of the U.S. patent system.
These interventions are not the result of the activities of a few disgruntled patent attorneys griping about the quality of issued patents or the inexorably long time it takes to get one. This attention is the focus of the nation on the esoteric issue of patents like never before. So, where will all of this lead?
Inventors in the sectors of gene sequences, software, diagnostic methods and personalized medicine don’t have long histories of patenting in these fields, since these industries are relatively new themselves. Making adjustments in the new fields is easier than changing practices in well-established areas.
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Approaching the problem as the Patent Office did in the field of business methods might well be the answer. Business methods, which cover industries such as e-commerce, financial services and insurance, have been considered patentable for centuries, although companies did not usually protect them through patents until the Court of Appeals for the Federal Circuit confirmed the U.S. Patent and Trademark Office’s practice of issuing business-method patents in State Street Bank in 1998.
The flood of new applications in the area of business methods, as a result of the decision in State Street Bank, overwhelmed the Patent Office. Patent examiners had no background in the subject matter and had inadequate databases to search for prior art. The financial-service sector began filing massive numbers of new applications when it had never filed before. And many of the new business-method applications had no technological innovation, making them even harder to search using the existing tools available to examiners.
But, as has happened in emerging technologies before, experienced patent examiners developed skills in the subject matter and more were hired who were familiar with business methods. Comprehensive databases were painstakingly developed. Applications in the field were intensively quality inspected. And, the quality of patents issued in the business-method arena improved dramatically.
It is important to recognize that the industries where patent eligibility is most often questioned are those where the United States leads the world. If we decide that the subject matter encompassed by these patents is not patent eligible, we could potentially affect tens of thousands of patents and even more jobs. Actions to limit patent eligibility in these areas could have severe unintended consequences.
We need to give the Patent Office more resources to do a better job examining the cases in these emerging technologies.
Focusing our attention on further improving the quality of the patents issuing from the Patent Office will go a long way toward properly awarding an inventor for his or her efforts, stimulating investment in research and providing competitors with more clarity.
It is the improvidently granted patent that is causing the bulk of our problems, not just in emerging technologies, but in all areas. Those patents that are not well searched and those claims that mask the true invention with vague language and overly broad scope are the biggest threat to our system.
The patent system of the United States has well served our unparalleled entrepreneurial spirit since our inception. Let’s focus our attention on further improving the quality of our issued patents, which have known benefits, before we undertake to experiment with new modalities for patents, which could have disastrous effects for our country.
Robert L. Stoll is a partner at Drinker Biddle & Reath in Washington, D.C. He formerly served as commissioner for patents at the U.S. Patent and Trademark Office.