An article in the IEEE publication, Spectrum, calls for "a radical cure for the ailing U.S. patent system." As proof, they cite the fact that a small grocery and catering company in Michigan received cease and desist letter from the J.M. Smucker Co. The letter accused Albie’s of violating Smucker’s U.S. Patent No. 6,004,596 by selling crustless peanut butter and jelly sandwiches.
The article takes the "big, bad corporations and their high-paid lawyers" against the "sweet, friendly mom-and-pop store" tact. You can almost smell the apple pie baking in the background. It goes on to state that the "beginning of the end" occurred when the U.S. Congress, in 1982, made the U.S. Patent and Trademark Office (PTO) fund itself through application and maintenance fees.
The article argues that this makes it easier to obtain patents, to enforce patents against others, and to extract large financial awards from such enforcement but harder for those accused of infringing patents to challenge the patents’ validity.
The authors go on to stat the our "patent system costs companies and individuals billions of dollars and millions of man-hours annually to obtain patents and fight frivolous lawsuits." Huh? Isn’t the patent system designed so that companies and individuals can get patents, exploit the technology and make money?
While I agree that patents are being more actively sought and vigorously enforced, this has more to do with our economy shifting to an intellectual property-based system over a traditional manufacturing base.
The article provides three suggestions to "fix" the system:
First, create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent.
Didn’t the American Inventors Protection Act of 1999 (AIPA) provide for this in third-party submissions and Inter Partes Reexamination?
Second, provide multiple levels of application review, with examiners devoting successively more time and effort as an application proceeds to higher levels. The goal would be to avoid wasting money to meticulously examine unimportant patents, while taking sufficient care to avoid mistakes where the stakes are high.
I’d like to see who gets the job of deciding which patents are the "unimportant" ones!
Finally, in cases involving claims of patent invalidity based on the existence of prior art?that is, previously issued patents or public disclosures covering the invention at issue?replace juries with judges who could call on experts, called special masters, for guidance. The change would give parties threatened by invalid patents a better opportunity to make their cases to the court.
Every legal specialty could argue the same thing but it is difficult to reconcile with the jury of ones peers system we have in place.
I think everyone would agree that it is a good ideal to strive for improving the quality of patents, reducing uncertainty surrounding the process of innovation, and limiting patent application, maintenance, and litigation costs. But arguing that the entire system is broken because someone obtained a patent on a watch for "keeping animal time" for dogs where it runs seven times as fast as an ordinary watch (U.S. Patent No. 5,023,850), does not prove anything other than the applicant met the minimum requirements for patentability (new, useful and nonobvious).