Patents are out of control, and they’re hurting innovation

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2022-01-20 14:30:05

Every Tuesday morning, the United States Patent and Trademark Office (USPTO) issues thousands of patents. Many of these patents contain dozens or even hundreds of separate claims, and every one of these claims is like a new federal regulation governing private conduct. This is because any company or individual that creates a product or service described by one of these claims might be liable for damages or subject to an injunction. A patent is a right to exclude — a right to stop others from engaging in certain types of business. If the USPTO issues a patent on, say, scanning documents to email, no one else is allowed to scan documents to email without getting permission from the patent holder. That prohibition applies even to someone who has never seen the patent, never met the patent holder, or never heard of the patent system at all. That’s why patents are basically regulations: they stop people and businesses from engaging in personal and business activities, often in unexpected and intrusive ways. The patent system works when it incentivizes innovation that we would not otherwise have without the benefit of a patent. But if patents are given too easily, or too broadly, they become a burden on innovation. Indeed, research suggests that the vast majority of patent cases do not involve copying or free riding. Too often, companies find themselves attacked by overbroad patents in the hands of people who did little or nothing to contribute to the progress of technology. Why are these patents being issued?

The USPTO does not have the time or the tools to adequately review patent applications. Patents are supposed to be novel and non-obvious compared to the “prior art” — that is, evidence of the state of the art at the time the patent application was filed. The universe of potential prior art is enormous. It includes earlier patents, academic publications, and all products available for sale in the United States. Much of this prior art, especially in software, cannot be easily found in indexed databases and is difficult to precisely date. A patent examiner is given about 18 hours to review a typical patent application, and only some of that time is spent searching for prior art.