A de facto patent registration system May 2, 2014Posted by Brian Schar in General, Patent prosecution, USPTO.
Somebody explain to me how it is that we don’t effectively have a patent registration system in the US.
After 3 or more years in USPTO hell, winning appeals, and obtaining a patent that is supposed to be presumed valid, the owner might want to assert it. However, the infringer against whom the patent is asserted will immediately throw that patent into IPR for more examination, sending the patentee’s purportedly-valid patent back to USPTO purgatory. A whopping _92 percent_ of the time the claims will be amended or canceled! How is this not a slap in the face to the examining corps, and the entire idea of patent examination? If patentees are losing patent rights 92 percent of the time, what was even the point of initial examination? Doesn’t this process negate on a de facto basis (1) the entirely of the examination process, and (2) the presumption of validity?
What is really happening on a de facto basis is that you have to open “real” examination, with adult supervision, at the time you assert the patent. That is the basic characteristic of a registration system – there is no examination, and no presumption of validity.
In my view we now live in a patent system with the worst of all possible characteristics, which of course is the American legislative way. Patentees have to endure the expense and time of a normal examination process, as in examination-based patent systems, but then have to have their claims confirmed in a later proceeding, as in a registration-based system.
Why not abandon the entire idea of examination as it currently stands, and simply allow registration of utility patents? Or at least give patentees that money and time saving option?