Improving (Software) Patent Quality Through the Administrative Process
41 Pages Posted: 29 Nov 2013 Last revised: 27 Dec 2014
Date Written: November 24, 2013
The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article, to be published in a Symposium on intellectual property and information law in the administrative state, argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the powerful new post-issuance procedures available to the agency under the America Invents Act. Notably, although the strategies the Article discusses have the virtue of being neutral as to technology, they are likely to have a very significant practical impact in the area of software.
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