Patent Blame Game: Are 70% of U.S. Patents Really Defective?

This week on IPWatchdog Unleashed I do not have a guest. Instead I want to take this opportunity to share my thoughts on the complex intersection between patent quality, patent examination and the Patent Trial and Appeal Board (PTAB). My interest in speaking today about these issues is triggered by the confirmation hearing last week for John Squires, who is President Trump’s nominee to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

During the hearing, Squires said his focus will be on making sure patents are, in his words, “born strong” because the PTAB has shown that 68% of issued patents are defective. This response from Squires has caused great concern for some who understood him to be saying that he believes the U.S. patent system is suffering from the issuance of low-quality patents. 

The reason this is so concerning is because the debate surrounding patent quality in the United States has historically focused on the notion that the Patent Office is letting too many bad patents slip through, a notion that has been promoted by a cast of characters and high-profile companies that have championed the very existence of the Patent Trial and Appeal Board, as well as the creation and use of various procedures that have made it ever more easy to strip patents away from patent owners. 

The problem with the low-patent quality narrative is that it just isn’t true. 

But does Squires believe the Patent Office is really issuing low quality patents and that is the problem? Does he believe the PTAB is doing a good job and is correct to find 70% of patents completely defective? Or does he believe the PTAB is aggressively overactive and should focus on error correction only where there is obviously a mistake and stop engaging in second guess of patent examiners? These are important questions, which didn’t get asked or answered as too many Senators used his hearing as an opportunity for scoring political points with the DOJ nominees who were having their hearing alongside Squires. 

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