PTO Endorses Patent Reform; Inspector General Questions Patent Quality Control

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PTO Endorses Patent Reform; Inspector General Questions Patent Quality Control


News of note from both ends of the patent litigation spectrum: The Patent and Trademark Office voiced general support for Congressional efforts to reform abusive patent litigation practices, while the Office of the Inspector General found the PTO lacking in its quality control measures for ensuring the issuance of high–quality patents. The juxtaposition is striking as the issuance of patents of questionable quality can lead to the filing of questionable patent litigation.

In prepared testimony, recently confirmed PTO Director Michelle Lee told the House Judiciary Committee that her office generally supports the Innovation Act now being considered by Congress and its aim of limiting the ability of patent–owners to file vague or abusive patent infringement actions. While Lee suggested tweaks to the language of the bill, she spoke in favor of action to require more detailed pleading of patent infringement; to require the losing party to pay attorneys’ fees in abusive litigation; and to add a customer stay provision that would ensure that a case against a product manufacturer would be decided before cases against a retailer of that product could proceed. Lee’s remarks were reported by The Hill.

Meanwhile, the Office of the Inspector General issued a report last Friday on patent quality, expressing some grave concern about the Patent Office’s quality control measures. The four areas of concern identified by the IG included: (1) the PTO’s performance appraisal plan and policies, which the report found ineffective at measuring whether examiners are issuing high–quality patents; (2) the PTO’s quality metrics, which underrepresent the true error rate; (3) the PTO’s failure to collect adequate data that could improve patent quality; and (4) the PTO’s inadequate response to patent mortgaging—the practice of examiners knowingly submitting incomplete or lower–quality work to improve their performance statistics. The Inspector General has requested a response from the PTO within 60 days. The report can be found here.

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