The hearing before the subcommittee

Testimony was first given by Mr. Drew Hirschfeld, Commissioner for Patents at the United States Patent and Trademark Office (USPTO). Mr Hirschfeld discussed various measures the USPTO had taken or is planning to take to increase patent quality, such as providing additional resources to examiners, issuing clear guidance on patentability and exploring artificial intelligence capabilities.

Next, testimony was given by Professor R. Polk Wagner, Professor Melissa Feeney Wasserman, Ms. Teresa Stanek Rea and Professor Colleen V. Chien. The witnesses suggested various ways in which patent quality could be improved, such as:

• Setting a clear and uniform standard for claim construction [Wagner testimony, 3]
• Changing the USPTO's fee structure to create less reliance upon post-grant fees [Wasserman testimony, 17]
• Increasing the time allotted to examiners to review applications [Wasserman testimony, 22]
• Facilitate collaboration between examiners, especially from counterpart patent offices [Rea testimony, 4]
• Relying on pilots to test different solutions [Chien testimony, 1]
• Create the option for applicants to indicate that the patent will only be held for defensive purposes in exchange for a discount in maintenance fees [Chien testimony, 2]

After the testimonies, the senators posed questions to the witnesses. Professor Wagner explained his view that Congress should be careful about instituting sweeping reforms because they will affect different industries differently and changes might well work to the detriment of smaller companies and individual inventors [video recording at 01:03:00, referencing earlier work in which he surveyed how the change to a first-to-file system had affected individual inventors, here].

Senator Blumenthal expressed concern about perceived abuse of the patent system by pharmaceutical companies. He asked the panel (i) if there was agreement among them that pharmaceutical companies sometimes use patents in an anti-competitive manner and (ii) whether this is an issue of patent quality [video recording at 01:12:15]. Several panel members seemed to agree that there is indeed potential for "strategic behaviour" by pharmaceutical companies, but it was pointed out that more than anything such behaviour arises out of the interaction between the patent system and the regulatory framework (or lack thereof). Professor Wasserman made the interesting suggestion to let the patent office spend more time on applications that are likely to be listed in the Orange Book, i.e. the list of drugs approved for marketing [video recording at 01:16:30].

Professor Chien compared practices and quality between the USPTO and the European Patent Office (EPO) [video recording at 01:07:30, drawing on a 2018 paper, here]. According to Professor Chien, the key difference is the early availability, before the EPO, of a search report that allows applicants to make decisions on continuation of the application at a very early stage of the process. This and other differences, she says, lead to high satisfaction with the EPO:

The surveys I've seen […] have shown that the EP [European Patent] is of the highest quality and also of the highest satisfaction […] There is a sense of a respect for EP process.

That's a great compliment to the EPO and the hard work they are putting in to make the European patent system as strong as it can be!

What about Europe?

The EPO has reported very high (80+%) satisfaction rates for some years now [here]. And it has been ranked first for patent quality among the world's largest patent offices for seven consecutive times in industry surveys [here; and see a 2011 survey carried out for the European Commission that found that "Companies assigned the European patent system the highest overall rating" (at 60), here]. That is good news for Europe, because the importance of patent quality is one of the few things that all patent professionals seem to agree on.

Still, there is data that suggests a less rosy picture. In a recent paper, Professors Henkel and Zischka find that between 2010 and 2012, the German Federal Patent Court fully invalidated 45% of patents challenged before it and partially upheld another 33% [here]. Based on survey evidence, they estimate that these chances of invalidation can be extrapolated to any 'randomly picked patent'. Looking at Europe-wide data in the period 2000-2008, Cremers et al also found fairly high invalidation numbers, especially in the UK, though nowhere near as high as Henkel and Zischka [here]. Could it be that European patents are getting more likely to be invalidated in litigation?

Infringement and invalidation rates (2000-2008) according to Cremers et al (Source: Springer)

This Kat has the impression that the answer might be yes, though that is largely based on anecdotal evidence. And it seems to be contradicted by consistent survey findings—though it is possible, if a little counter-intuitive, that European patents are perceived as being of high quality despite (apparently) being invalidated approximately half of the time.

That is why he turns to you, dear reader, for help. Readers familiar with the European patent system are warmly invited to share (i) empirical work on the quality of European patents, (ii) any personal experiences and observations, or (iii) any other material you think is relevant to European patent quality. You can do so by responding in the comments below or, even better, via e-mail [contact details here]. Naturally, all submissions will be treated confidentially.

Your input would be greatly appreciated! Insights gained from your submissions will be the subject of a follow-up post.