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.
One solution may be to adopt an add-on to the patent system that has long been a part of traditional European models and is now common in other countries as well. This would allow for the issuance of what are commonly known as petty patents or utility model patents. Typically, such patents are not examined unless sued upon, published quickly, narrowly construed and of more limited duration than other patents.
This may free up the examination system to reduce pendency times and improve the quality of the U.S. patent examination process. It also responds to two other concerns reflected in the National Academies' report. The first of these concerns is for better and more timely dissemination of both the technical information in patents and the patent-based barriers to product development in industries characterized by complex technologies and short product life cycles. The second concern to which the implementation of a petty patent system would respond is that of better tailoring the patent system to the needs and characteristics of different industries.
Again, innovations in industries characterized by short product life cycles may find those innovations adequately protected by narrow and short-term patents while not being burdened with patents still unexpired but well beyond the life of the innovative products they were designed to protect.
Relatively little has been published to suggest serious consideration of such a system in the United States.
Given the increasingly vocal critics of the patent system, this and other system improvements should continue to be addressed. Unfortunately, Congress may have little appetite for wading into this problem after its seven-year march to the Leahy-Smith America Invents Act that it finally passed in 2011. Also unfortunately, those interested in improving or justifying the system are so confident that the value of the system to incentivize innovation is generally recognized and acknowledged that they see little need to prove that value. This of course is exactly the void to which critics of the system point.
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