You Are Going to Hear A Lot More FUD about Patent Law, So Here Are Some Facts

By Michael Borella --

They may have known that it was coming.  Over the last several weeks, lobbying organizations and high-tech blogs have been slowly introducing the same old false, misleading, and deceptive arguments against patent law.  These propaganda screeds are once again claiming that the patent system is awash with bad actors belligerently patenting vague and obvious inventions, and then slowing scientific and technological progress by asserting these patents against the world.  The solution, in their minds, is to weaken patent law.

Then, last month saw the introduction of the Patent Eligibility Restoration Act of 2023 (to address the inequities of 35 U.S.C. § 101) as well as the Promoting and Respecting Economically Vital American Innovation Leadership Act, conveniently acronymized as PREVAIL (to address abuses of the USPTO's Patent Trial and Appeal Board).  Both of these bills are modest reforms to strengthen areas of patent law that have been eviscerated by Congress and the Supreme Court.

So let's take a step back and, with full awareness of Brandolini's Law, both rebut and pre-but the fear, uncertainty, and doubt (FUD) about patent law that is brewing.  Like many lies, the positions taken by the anti-patent crowd are often based on a kernel of truth.  But then this underlying truth is twisted and distorted beyond recognition into a harmful policy position.

In other words, criticism of patent law often raises valid concerns.  However, it is essential to examine this discourse with balanced perspective that considers both the benefits and challenges associated with patents.

Patents are intended to serve as incentives for innovation, providing inventors with exclusive rights to their creations for a limited term.  This exclusivity encourages inventors to invest substantial resources, money, time, and creativity in developing groundbreaking technologies -- such as investment-heavy endeavors like advanced artificial intelligence models and pharmaceutical development.  By offering protection for this limited term, patents create an environment that rewards inventors and can stimulate further research and development.

To that point, the patent system requires inventors to fully disclose their inventions in exchange for the right to exclude others from making, using, selling, or importing these inventions.  By making detailed information publicly available, patents contribute to the collective knowledge of society.  This knowledge sharing can serve as a foundation for future innovations, allowing others to build upon existing ideas and drive further progress.

On the other hand, a weak patent system results in more inventions being held as trade secrets, potentially forever.  Maybe this is not a huge concern if the invention is a widget that makes automobiles a few percent more efficient.  But life-saving drugs and diagnostic methods may never enter the research phase if a potential patent is not available.

Worries over the balance between exclusivity and accessibility are legitimate.  It is important to ensure that patents do not impede competition or creativity.  For example, an overly permissive patent system (in which just about anything would be patentable) would stifle innovation and establish gridlock in certain technologies.  But we do not live under such a regime.

While the USPTO does grant patents that it should not from time to time, it also refuses to grant patents that it should.  The USPTO also makes the process to grant so lengthy and time consuming that some startups and small companies are effectively excluded from full participation in the system.

A well-balanced patent system empowers U.S. companies to compete effectively in global markets.  Patents protect products and technologies from unauthorized use, giving U.S. businesses an advantage in the global arena against copyists from low-cost regions.  This protection fosters a culture of entrepreneurship, enabling U.S. companies to create unique products and maintain a competitive edge against foreign rivals.  Encouraging technological advancement and protecting American inventions helps U.S. industries continue to lead in areas such as biotechnology, pharmaceuticals, artificial intelligence, data science, communications, advanced computing, and other critical sectors.

Regarding patent quality, critics often point to the potential for abuse from broad and vague patents.  No one should question the need for rigorous USPTO examination processes to grant patents only for truly novel and non-obvious inventions.  Current USPTO examination procedures are inconsistent across art units and individual examiners.  Evaluation and improvement of these procedures can mitigate concerns regarding quality.  Additionally, mechanisms for post-grant review and opposition proceedings (even if the PREVAIL Act passes) currently serve and would continue to serve as a safeguard against errors by examiners.

Another bogeyman raised ad nauseum by the anti-patent crowd is the specter of so-called patent trolls.  Trolls are non-practicing entities (NPEs) that exploit patents for litigation and licensing purposes rather than for protection of products and services.  While they pose a legitimate concern and can be annoying and expensive to deal with, it is important to note that their activities represent a distortion of the patent system rather than a fundamental flaw in the system itself.  Efficient legal mechanisms, such as early dismissal of meritless cases and fee-shifting provisions, can help alleviate their impact.  Other options including limiting the damages afforded to aggressive litigators.

But we need to keep in mind that some of the most active entities in development of scientific and technological advances are NPEs -- our university systems.  Any attempt to address "trolls" needs to recognize that academics should be able to benefit from the patent system through licensing rather than forcing them to start and run companies.

Finally, some detractors simply do not like software patents.  Their rationale has never been clear but it seems to be based on one or more of the false assumptions that all software patents are too broad (they are not), that it is obvious to invent software based processes (not ones that are patentable), programming is an administrative activity that does not warrant patent protection (you try writing non-trivial bug-free code), or that the patent system should not protect non-physical inventions (software requires physical hardware to run).  None of these positions have any legal or technical credibility.

Over the next few weeks and months, apply a skeptical eye to criticisms of the patent system.  Many have and will come from individuals who are not well-versed in patent law -- journalists, commentators, hyper-libertarian tech bros with an axe to grind, or even lawyers who do not practice in the patent space.  Be cautious and do not fall victim to their prevarications.

Comments

[Henry Cittone]

People (read companies) who don't like software patents are people who like to steal code. Why work when you can get someone else to do it for you and then use your superior distribution channels to sell their work.

[BOB KELSON]

Michael,

A great article.

Applicable to most, if not all patent regimes.

Bob Kelson

[skeptical]

Almost - but definitely not quite - agree with you, Dr. Borella.

While some may view your 'politeness' (or acquiescence) on some points to be inconsequential, I view them more of a slippery slope or camel's nose under the tent, and - frankly - unworthy of any indicator of having even a remote level of veracity.

For example,: "For example, an overly permissive patent system (in which just about anything would be patentable) would stifle innovation and establish gridlock in certain technologies."

False.

Here you commit a direct error that is one of the planks attempting to be corrected: slipping items of 102, 103 and 112 into 101.

There is NO SUCH THING as "just about anything" when one considers the heavy lifting of 102, 103, and 112 will still be in place.

Perhaps you meant something along the lines of the understood concept of "utility" in the patent sense. Or, in other words, the fact that "Fine Arts" does not fall under that utility.

This is in explicit contrast to a FATAL FLAW of the current bill (what has been labeled as a Poison Pill, or Trojan Horse): the inclusion of the phrase “substantially economic, financial, business.”

One would do well that this attempted distinction is not only ill-founded, but is antithetical to very specific arts that we ALL should want to fall into the promotion effect of innovation protection of the patent system.

One need not dig deep at all to see just who benefits by these areas being kept out of (often) destructive innovation -- read that as resetting from established powers) -- protection.

One key way to look at this (in the flavor of Quid Pro Quo) is that for ANY such innovation (again, these need pass 102, 103, and 112), the "0n-N0es" aspect of a "stick" IS a critical provider of promotion.

It is OFTEN when faced with an "unmovable object" that the river of innovation is thus "forced" to jump its banks and cut a new CREATIVE path.

We ALL should embrace both the carrot and the stick aspect of strong patent rights.

[Michael Borella]

Skeptical, to the extent that you think this article is just about 101, I believe you missed the point. Instead the focus is on patentability in general and is in response to misinformation being spewed about the patent system once again.

[skeptical]

Dr. Borella,

Certainly my post is not only about 101.

That being said, my points ON 101 are directly ON point.

Your reply appears to assert that my missive misses.

It does not.

[MaxDrei]

I have always thought that the measure of a patent system functioning as it should is that bad patents are swiftly extinguished while good ones are swiftly enforced. Then, industry has certainty, and can thrive.

Easy to say but hard to do. The situation reminds me of St Augustine's big ask: the one about giving me the wisdom to distinguish the one from the other.

If a patent system is malfunctioning it is usually because it lacks efficient ways to finger which are the good patents and which the bad. It is the task of the courts to provide that efficiency. Unless the responsible judges are patent professionals, they cannot do that job.

Tell that to the detractors.

[skeptical]

Which "detractors" did you have in mind, MaxDrei?

[Dr. Karl P. Dresdner, Jr., US Patent Agent No. 63,319]

Dear Mr. Michael Borella,

Thank you for your view and article. I agree with your all of your points. Patent law is overly complex but it serves admiration not criticism by special interest groups.Patent law has changed too much in the past 30 years!

The Judges in patent law cases need a BA or BS in science. Its clear US Judges at many court levels have damaged the fundamental reasonings with 101, 103, 112, and 102. Consequently, the USPTO role in patenting has become needlessly burdensome and punitive to inventors of all kinds of businesses and individual inventors. Important inventions are as a result not being patented.

A good example of this well-known patenting problem is information technology (IT), software applications, and all sorts of computer related technology innovations and breakthroughs in the US and other countries. These innovations need patenting support not patenting ineligibility. The Patent System is too narrow now in what is considered a patentable invention and this is harming the US ec anomy as well as the economies of other countries.

involved in altering patent law or making decisions in landmark cases