The problem is also that the USPO granted the patent in the first place
I heartily agree. Improving the process of litigating patents is nice, but we really need to improve the quality of granted patents. I believe that this problem is solvable, if we can muster the courage to admit that we have made mistakes in managing the patent office. In my opinion, the most important of these mistakes are:
1) More patents are not better than fewer patents.
Patents are not Innovation. Patents are not Progress. Patents are simply grounds to file a lawsuit against an industry. More Patents are simply more grounds for more lawsuits. An occasional lawsuit might spur innovation. BUT LAWSUITS DO NOT PRODUCE. Lawsuits are parasitic on innovation and production. Reform must recognize that patents are dangerous monopolies. Reform must place hard limits on the number of patents.
2) Running the US Patent Office as a cost-recovery operation is a mistake.
The US Patent Office is a very small, but critical component of the US economy. It's purpose was "..to promote the Progress of Science and useful Arts.." (US Constitution Article One, Section 8(8).) But, once the USPTO became completely cost recovery (Omnibus Budget Reconciliation Act of 1990, Title X, Subtitle B), that primary goal became overshadowed by the more pressing goal of securing funding via patent fees. The primary effect of cost recovery has been to promote the collection of patent fees.
Reform is painful, but simple. Admit cost recovery is a failed experiment. Revert the funding model to the model used for the first 200 years. The USPTO must be centrally funded by the US government. Any collected fees should be returned to the US Government.
3) It is a mistake to organize the US Patent Office to create economic incentives to grant poor patents.
Currently most of the revenue of the US Patent Office comes from GRANTING patents. See the USPTO FY 2013 President's Budget page 37: www.uspto.gov/about/stratplan/budget/fy13pbr.pdf "..More than half of all patent fee collections are from issue and maintenance fees, which essentially subsidize examination activities." A recent study by the Richmond School of Law found that the USPTO's actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/pa... page 9. In 2001, it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable, they ALL got granted. Things haven't improved much since then.
Reform could come in many forms, but the simplest and most reliable would be to eliminate and unify the Patent office fees into a single filing fee. This fee would provide no guarantee of receiving a patent, only a guarantee that your patent would be considered. This would free the Patent Office to be able to deny poor patents. The filing fee should be high enough to discourage spurious patent applications.
4) Scaling up the Patent Office to produce more poor quality patents is a mistake.
Currently, we expand the number of patent examiners based on demand. See the USPTO FY 2013 President's Budget, page 60, Gap Assessment: "Meeting this commitment assumes efficiency improvements brought about by reengineering many USPTO management and operational processes (e.g., the patent examination process) and systems, and hiring about 3,000 patent examiners in the two-year period FY 2012 and FY 2013 (including examiners for Three-Track Examination)." Again, the assumption is, more patents are better, even if it means decreasing examination, and increasing the number of untrained examiners. Poor quality is an inevitable result of this patent process.
Reform must tightly control and limit the number of patent examiners.
5) It is a mistake to grant all patents that meet minimum standards.
A review of the last couple decades changes in the patent approval criteria will reveal that the minimum standard for granting a patent has consistently shifted downwards. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades. Reform is easy. You rank Patent Applications according to an agreed measure of quality, and only grant the top few percent. Over time, the pressure will be to improve the quality of patent applications, instead of degrade them.
6) Finally, please consider that it is a mistake to allow patent applicants to modify or extend their patents after submission.
This complicates the patent pipeline. It facilitates ‘submarine’ patents. It enables capturing Standards. It also enables gaming the patent system. Reform must simplify and reduce the patent process. Patents should be quickly evaluated. Most should be denied. If an applicant wishes to modify a denied patent, they should alter it, resubmit, and pay a new filing fee.
Real patent reform is possible. The pressures that currently give rise to bad patents are fairly obvious. We can mitigate those pressures and institute processes that tend to increase patent quality. If we can just summon the courage and political will to correct our mistakes.