Friday, Aug. 21, 2009 | Reading David Washburn‘s piece, Too Many Patents Pending, Not Enough Issued, in voiceofsandiego.org gives me a feeling something like déjà vu. Way back in 1922, we apparently had a similar problem (see Fish Demands Reform). The founder of my law firm, Frederick P. Fish, demanded reform back then, and Congress did finally take action to correct many of the patent system’s problems. Unfortunately, many of the problems Mr. Fish pointed out then are back again today.
Mr. Fish noted that poor examination by the U.S. Patent Office leads to “expensive and protracted litigation, which is a serious hardship to the owner of the patent and to the public.” This is the core problem of our patent system today. Congress has been trying to pass patent reform legislation for years now, but they apparently fail to realize that many of the problems of patent litigation are a direct result of poor examination by the Patent Office.
Moreover, as the Milwaukee Journal-Sentinel’s series of stories aptly point out, the poor quality of examination by the Patent Office leads to increased costs for patent applicants, which has a significant negative impact on new ventures and new products. This negative impact on future innovation and investment will hurt San Diego County, in particular, since we are a hotbed of new ideas and new companies. Thankfully, San Diego’s Darrell Issa has been a leader in moving forward with patent reform. Unfortunately, the U.S. Senate has once again decided to delay the patent reform process.
We, as a nation, really can’t wait very much longer for patent reform. I work with examiners at the Patent Office on a regular basis, and it seems to me that a large source of the problems of delay and poor examination quality is clearly a result of low pay and unrealistic workload for examiners. In the long term, solving these problems will have a major impact in addressing the patent litigation issues we face and should thus be dealt with sooner, rather than later.
Back in 1922, Mr. Fish appears to have believed that a delay of one year before the first action by the Patent Office was unacceptable. Today, the Patent Office frequently takes more than two years, and sometimes even more than three years, before issuing a first action. This has to change if the United States is going to maintain its leading position in the innovation economy of the future. Innovation plays a larger role in our economy today than it did in 1922, so the problems with the Patent Office today are that much more significant than they were back then.
William E. Hunter is a Principal in the San Diego office of Fish & Richardson P.C. His e-mail address is firstname.lastname@example.org.