It has been clear for a long time that finding factual information to support patent law was not taken anywhere near as seriously as finding factual information to support criminal law. Not even close. I came up with an analogy.
If criminal law functioned like patent law we would have no prisons, treat all crimes the same, and then send the prosecutor a load of circumstantial evidence some not related to the crime allowing the criminal to walk.
While this analogy is not inaccurate, its point being ineffectual fact finding in patent law, it doesn’t help inform the issue as it affects patent law because criminals don’t usually walk. Then I thought of the innocent victim.
If criminal law functioned like patent law there would be a lot of innocent people going to jail. Detectives would spend a few hours investigating and stop when a 1st suspect was identified. That person would be convicted due to deference given the expert detective. A wrongly convicted person would go to jail. An innocent person didn’t do anything wrong yet they are getting punished.
In this scenario what would society do? Adjust legal rules making the process seem fairer to the accused or reform how detectives conduct a thorough investigation. We would probably do both.
This sounds absurd but it is precisely the situation in which many entrepreneurs and start-ups find themselves.
In patent law the victims are the small inventors and inventor-started companies (individual inventor) who do everything right. They obtain a patent that has been duly examined. They employ an attorney, follow the attorneys advise, go through two plus years of prosecution and finally receive a patent. Then, when the patent proves valuable, through no fault of their own, in fact through no fault of anyone – applicant, attorney or examiner – they lose their property in an Inter Parties Review. . Individual inventors are getting punished even though they and everyone else did everything right according to the letter of the law. They are the innocent victims of patent law.
They lose their patent in an IPR for the simple reason of ineffectual fact finding. Finding evidence pertinent to patent applications is not hard. Sixty-seven (67%) of all IPR invalidations are based on US or Foreign patent documents (see Prior Art in Inter Parties Review). This means a substantial number of patents are invalidated from low hanging evidentiary fruit. Worse 21% of invalidations are based on prior art of record. This tells me that in 21% of IPR cases that no one on either side looked closely at the material of record. Ineffectual fact finding is the root cause of IPRs and PTAB. This is an intrinsic systemic flaw.
Just as the justice system works in most cases so does the patent system. Since 1931 corporations have been the predominant filers in the US, supplanting individuals. Most corporations do not obtain patents to either enforce or license. And only a very small percentage of patents granted in any given year are valuable. For the vast majority of patent applicants, ineffective fact finding isn’t an issue. For a small subset it is fortune killing.
After ten years of the USPTO revoking duly issued patents, we see there are indeed innocent victims.
The question is how does Congress propose to address this issue.