PK, EFF, and Engine Comments on USPTO Patent Quality Initiative
PK, EFF, and Engine Comments on USPTO Patent Quality Initiative
PK, EFF, and Engine Comments on USPTO Patent Quality Initiative

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    The Electronic Frontier Foundation, Engine Advocacy, and Public Knowledge respectfully submit the following comments in response to the Request for Comments dated February 5, 2015. The commenters represent the public and small technology business interests, who advocate for a balanced patent system that promotes invention without dampening the innovative space upon which the public and the economy rely.

    We strongly support the USPTO’s efforts to improve patent quality by ensuring that issued patents satisfy the statutory requirements, do not impinge upon the public domain of prior art, are clear as to their scope, and have a fully developed record of proceedings in the file history. Improperly issued patents can cause enormous harm, as such patents are undeserved monopolies that can force the marketplace to spend millions of dollars and countless hours dealing with them.

    The USPTO and its examiner corps are the first line of defense against bad patents. At the Quality Summit held earlier this year, former Federal Circuit Chief Judge Paul Michel expressed concern that patent prosecutors routinely seek “grossly overbroad” claims, suggesting that 70–90% of patents he reviewed contained one such overbroad claim. He stated that the patent examiner, who “first and foremost is an adjudicator” of patentability, must act as “the guardian of the public domain” to prevent issuance of overbroad patents that might drag down industries and future inventors. It is the duty of the USPTO and every examiner to defend the public and to defend the future from the momentous external costs created by low quality patents, by diligently reviewing applications and weeding out invalid claims at the outset.

    “The public . . . is demanding higher quality” in patents, in the words of Director Michelle Lee. We strongly urge the Office to focus its energy on creating data, training materials, and enhanced quality reviews targeted at reducing errors in allowances. Only then can we create a patent system that serves its true customers, the public.