This month, the IP Policy Institute at the University of Akron School of Law released a policy brief, “Measuring Patent Quality and Reducing the Backlog at the USPTO,” presenting it as new empirical research. But if the content felt familiar, that’s because it’s little more than a repackaging of last September’s Sunwater Institute report on patent quality, right down to the same flawed warnings against “overemphasizing” low-quality patents that are wrongfully approved and downplaying valid patents that are wrongfully rejected.
As I explained at the time, the Sunwater report seemed to rely on misleading assumptions around how it measured “Type 2 errors,” defining it as legitimate patents that are rejected or abandoned. But more fundamentally, both the Sunwater report and this new brief insist upon a false binary, that “effective patent policy must strike a balance between efficiency (reducing the backlog) and accuracy (maintaining high quality).”
Their argument goes something like this: since low-quality patents being wrongfully granted isn’t cause for concern, we can safely lower quality standards to speed up the examination process and reduce pendency. In line with that logic, the brief suggests the USPTOUnited States Patent and Trademark Office. See also PTO. should “consider policy reforms to limit the number of negotiation rounds” during initial examination.
That’s exactly the wrong takeaway. After the Government Accountability Office (GAO) found “persistent examination and quality issues” and a systemic “quantity over quality” focus at the USPTOUnited States Patent and Trademark Office. See also PTO. this April, no serious observer should conclude that the solution is to short-circuit the examination process and limit quality checks.
As I noted in October, “the most immediate way to reduce both Type 1 [false positive] and 2 [false negative] errors is to give patent examiners at the USPTOUnited States Patent and Trademark Office. See also PTO. the tools and resources they need to make accurate validity determinations.” In some welcome news, the agency is reportedly seeking to add 1,000 more examiners to its FY 2026 budget and considering how examiners may be aided by AI to enhance productivity and accuracy. So no, reducing Type 2 errors doesn’t require lowering our quality standards; it just means finally giving examiners the time and support they’ve been asking for.
This brief goes to great lengths to argue that “policymakers should not use [PTAB] invalidation rates as indicators of overall patent quality,” since PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. challenges are not representative of patent quality writ large. But this point is a strawman and a distraction. No one is arguing that the patents challenged via the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. are representative of all patents issued. What PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. advocates do say, however, is that in an environment where the GAO confirmed that “the USPTOUnited States Patent and Trademark Office. See also PTO. places greater emphasis on meeting output goals for the number of applications reviewed over issuing quality patents,” it is essential to have an easily accessible post-grant reviewA procedure by which a third-party may contest issuance of a patent at the USPTO within a short period (9 months) after issuance. Introduced to the U.S. by the AIA. The EPO has a similar procedure. process.
Repackaging a flawed report doesn’t make its conclusions any more valid. And especially given what we’ve learned since it first appeared, policymakers shouldn’t fall for it now.
