Can the Patent Office Be Fixed?

The Patent and Trademark Office (PTO) finds itself caught in a vise. On the one hand, it has been issuing a large number of dubious patents over the past twenty years, particularly in the software and electronic commerce space. It issues many more patents than its counterparts in Europe and Japan; roughly three-fourths of applicants ultimately get one or more patents, a higher percentage than in other countries. Complaints about those bad patents are legion, and indeed, when they make it to litigation, they are quite often held invalid.

Even the ones that turn out to be valid are often impossible to understand; in the information technology industries, there is no lawsuit filed in which the parties don’t fight over the meaning of patent claim terms. The natural reaction is to say that the PTO needs to do more than it does to make sure it is awarding patents only to those who deserve them. Prof. Lemley discusses the problems the USPTO faces, and what will not be successful in fixing the problems and what may.