If you’ve read our coverage of the Electronic Frontier Foundation’s “Stupid Patent of the Month” series, you know America has a patent quality problem. People apply for patents on ideas that are obvious, vague, or were invented years earlier. Too often, applications get approved and low-quality patents fall into the hands of patent trolls, creating headaches for real innovators.
Why don’t more low-quality patents get rejected? A recent paper published by the Brookings Institution offers fascinating insights into this question. Written by legal scholars Michael Frakes and Melissa Wasserman, the paper identifies three ways the patent process encourages approval of low-quality patents:
The United States Patent and Trademark Office (USPTO) is funded by fees—and the agency gets more fees if it approves an application.
Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
None of these observations is entirely new. For example, we have covered the problems created by unlimited re-applications in the past. But what sets Frakes and Wasserman’s work apart is that they have convincing empirical evidence for all three theories.
They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we’d likely wind up with fewer bogus patents floating around.