That report reflected detailed consideration of the various impediments to innovation and competition alluded to by less objective critics of the patent system, including:
• Inconsistent quality of issued patents as volume of applications increased.
• Differences among national patent systems causing avoidable costs and delays.
• Selective nonpublication of patent applications and excessive concern for findings of willful patent infringement that deters use of patents as a source of information dissemination.
• Escalation of litigation costs, protraction of litigation and increased number of suits.
• Limitations on the use of patented technology for new research and development.
The National Academies' report also made detailed recommendations for overcoming these impediments. With one exception, every one of these detailed recommendations has been met with positive responses by one or more of Congress, the Supreme Court, the Federal Circuit and the PTO. While it may be some time before these responses can be fully evaluated, critics of the system would do well to consider these responses rather than ignoring them.
Some problems identified in the National Academies' report extend beyond the patent system. The escalation of litigation costs, for example, is not unique to patent litigation.
And certain of the problems alluded to in the National Academies' report may well justify further response. For example, there has been no response to the report's concern for the impediment to research and development based on the absence of patent infringement immunity for R&D. Indeed, many proponents urging the Supreme Court to reverse the Federal Circuit's opinion in Association for Molecular Pathology v. U.S. Patent and Trademark Office, 689 F.3d 1303 (2012), 103 U.S.P.Q.2d 1681 (usually referred to as the Myriad Genetics case), in which the Federal Circuit held that a patent claim to an isolated human gene is valid, base their opposition on the impediment to further research such patents represent. This could best be resolved legislatively, but there appears to be little movement in that direction.
Perhaps of greater concern, we should acknowledge the uncertainty created by an overburdened patent examination corps. Long patent application pendency times are only one result of this problem. Many knowledgeable observers believe the quality of issued patents generally suffers as a result of this problem. Collectively, the effects of increasingly technical inventions, increasing numbers of patent applications both from the United States and abroad, and the limited resources necessarily available for patent examination may to some degree impede investment in innovation and enhance the prospects for litigation. That problem, while overblown by outright critics of the patent system, remains seemingly intractable, notwithstanding heroic efforts of the outgoing under secretary of commerce for intellectual property, David Kappos.
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