Improve Patent Quality​

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​Patents encourage innovation when they reflect a genuine advance in technology, clearly describe what that advance is, and properly disclose how to make and use that advance. These patents reward innovators while also contributing to the storehouse of human knowledge that provides the foundation for future innovation. 

 

Unfortunately, many patents fall short of these basic standards of novelty, clarity, and disclosure. Many attempt to claim protection for technology that is already known or that is obvious to those familiar with the field. These invalid patents do not reflect actual innovation or contribute any new scientific information to the storehouse of public knowledge. Many others fail to clearly describe the invention and its use, leaving ambiguity and vague boundaries that create business uncertainty and unnecessary litigation without properly disclosing technical information to the public. 

 

Academic research suggests that more than a quarter of all patents granted – and around half of all business methods and software patents – are invalid due to such defects. Instead of incentivizing innovation, these invalid patents often deter it by diverting resources away from R&D, generating unnecessary litigation, and feeding patent thickets in which thousands of issued patents can cover the same high-tech product or service.

 

HTIA supports actions to address the crisis in patent quality, including: 

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• The Patent Office should be given adequate resources to conduct a full and rigorous examination of every application, and ensure thorough investigation based on the best prior art.

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• Applicants should do more to help the Patent Office by fully explaining how the invention works and how it differs from existing technology, as well as by using clear language to define claim scope.

 

• Courts, not Congress, should define the line between eligible and ineligible subject matter and apply it to fast-changing technologies. Section 101 of the Patent Act and over a century of Supreme Court case law limit patent protection to technological inventions and prohibit the patenting of abstract ideas. This prevents patentees from monopolizing basic concepts that are essential building blocks of subsequent innovation or taxing technologies developed in the future by others. 

 

• Existing clarity requirements should be more rigorously enforced to ensure that a patent and its prosecution history provide clear public notice of what is covered and what is not, enabling others to avoid infringing the patent. 

 

• Patents should be required to clearly describe and fully explain specific technological advances to ensure they make a legitimate contribution to the world’s scientific knowledge in exchange for the grant of exclusive rights.

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• The Patent Office and courts should refuse to give claims written in functional language the excessively broad scope that would result from a literal interpretation. Instead, the Patent Office should limit their scope to the particular solutions disclosed in the patent.

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• Courts should interpret claims in light of the description of the invention and its use contained in the patent specification in order to make the scope of claims more predictable and appropriately tailored to was actually invented and disclosed.

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• The Patent Office should continue to be funded by its users, but user fees should be restructured so that the fee associated with a particular service more closely approximates the cost of providing that service. This would provide greater financial stability, allow greater cost recovery early in the life of a patent, and reduce any potential perverse incentives to grant patents that have not satisfied rigorous examination standards.