Could USPTO leniency be the open door for patent trolls?

On behalf of Kaufhold & Dix Patent Law posted in Patent Law on Tuesday, March 27, 2018.

Just about anything seems to hold some potential for becoming weaponized these days. Cyber bullying uses social media to inflict shame and pain on others. Flaming arrows over Twitter have seen a resurgence of life lately, especially in politics. In the intellectual property world, many agree that the threat comes from patent trolls.

Unless you live under a rock (or perhaps a bridge), you know that patent trolls are individuals or entities who leverage patents in a legal way. As one recent study describes them, patent trolls obtain rights to patents from others who did the actual work. The attractive patents are those that offer an opportunity for asserting rights against alleged violators, usually in hopes of scoring financial settlements.

The fact that these enterprises don’t seek to create useful products but only capitalize on patents makes them suspect in the eyes of many. But the report by researchers from Harvard and the London School of Economics suggests that the weakest link in what should be a strong IP protection chain might be patent examiners who fail to vet patent applications properly before granting approvals.

As the report notes, examiners play an important role in the patent process. They don’t just say yea or nay on patents. They have the power to ask for refinements of claims to be sure they really apply to the invention in question. Some examiners do this more often than others, however, and the presumption is that more is better.

The researchers looked at the work of various examiners recently. They found that a disproportionate number of approved patents sparking lawsuits by enforcement entities were those for which the fewest changes in claims were sought. Specifically, they determined that approvals that reflected one standard deviation in greater leniency than average resulted in a significantly greater chance of patent litigation – by 64 percent.

Those experienced in representing patent seekers will likely agree that approval of broadly worded claims is desirable because it affords more enforcement potential for the holder. The economists therefore recommend that for patents to have true value, examiners need better training to challenge claims and have more time to render decisions.

On the other hand, applicants might be justified in arguing the process is already too complicated and takes too long to complete. What do you think?