Reforming the patent system to support American innovation

Over the years, Google has worked to ensure that the United States patent system continued to spur new inventions and technologies. A healthy patent system incentivizes and rewards the most original and creative inventors — while helping others build on existing ideas and avoiding frivolous litigation. Supporting that balanced approach, we were one of the first companies to pledge not to sue any user, distributor, or developer of open-source software on specified patents, unless first attacked. We helped found the License on Transfer (LOT) Network, which shields its members from being sued over patents that other members have sold to patent trolls. And we worked in collaboration with others to create a repository of hard-to-find “prior art” documents to improve the patenting process, resulting in higher quality patents.

We have also invested heavily in patenting our engineers’ inventions in advanced technologies. Our tens of thousands of engineers have authored over 42,000 home-grown patents and we have licensed hundreds of thousands more at fair value. We are proud of our patented innovations like the ability to predict traffic or extend battery life. And we have sold hundreds of patents to smaller companies interested in bolstering their own portfolios.

But we are concerned that America’s patent system is increasingly failing to promote the cause of innovation and progress. The quality of patents issued in the U.S is declining. And, after a few years where earlier reforms reduced abusive patent litigation, it’s back with force, with 46% more lawsuits in 2021 than in 2018. Patent trolls and opportunistic companies have begun to weaponize patents against their rivals, hindering both competition and innovation, and ultimately harming the quality of new products. America’s prized “culture of innovation” is being undermined by a “culture of litigation.”

Reversing the rising tide of wasteful patent litigation

Aggressive litigants waste valuable court resources unsuccessfully trying to stretch patents beyond recognition. And prolific patent trolls wage litigation shakedown campaigns with low-quality patents that are later found to be invalid, wasting time and resources that could have been spent on developing new products.

Google is a resourceful company with a strong record of fighting overreaching patent claims, and we can defend our users and products. But many smaller companies, especially those producing nascent technologies, cannot afford the risk and expense of these lawsuits, which raise costs for consumers and stifle companies’ ability to bring products to market. That is why we are calling for more support for the United States Patent and Trademark Office (PTO), reforms to how the judicial system handles patent claims, and Congressional changes to address patent abuse.

Investing in the Patent Office

Each year, the PTO approves more than half of the more than 600,000 patent applications it receives, working to balance incentives for investment and freedom to innovate. Evaluating those applications is a monumental task and in recent years the agency has not had the tools it needs to do its job right. Technology can help, and the PTO is working on AI solutions to streamline the process. But its hard-working employees remain under-resourced to keep up with advancing technology. This results in invalid patents getting issued to inventors, which undermines their ability to protect technology confidently. Others face the cost and hassle of defending infringement claims against patents that should never have been granted in the first place. This isn’t fair for anyone except patent trolls.

Ending forum shopping

There are 677 federal district court judgeships in the United States. But many companies suing over patent claims are gaming the system. This forum shopping has gotten so out of hand that almost 25% of all US patent litigation is now being filed in a single courthouse. After a bipartisan request for action, Chief Justice John Roberts has committed to investigate the issue and push to restore the integrity of the judicial process.

Restoring Inter Partes Review

On top of all this, changes to PTO rules have weakened Inter Partes Review (IPR), the program that Congress created to help companies cost-effectively invalidate low-quality patents. Congress carefully constructed the IPR program to provide expert review of the small subset of patents with the greatest impact on our economy. But new PTO policies make it harder to use IPRs to invalidate patents in a cost-effective and streamlined way.

Preserving America’s culture of innovation

A series of steps would improve the current system, benefiting both innovation and consumers:

• At the United States Patent and Trademark Office, a new director is now at the helm, with a clear mandate to improve patent quality as set out in the Commerce Department’s Strategic Plan. To do so, the Office should work to ensure that the agency’s process for reviewing an application for a patent is robust, and that patents that shouldn’t have been granted can be promptly, efficiently, and effectively challenged. Of course, that will require giving the PTO the resources it needs. The PTO is funded by fees paid by patent applicants, and we support increasing fees for the largest patent filers, including Google. With the confirmation of PTO Director Kathi Vidal, this important work can finally begin.
• In the judiciary, the Supreme Court’s year-end report on the federal judiciary made the issue of forum shopping one of three topics of focus for 2022. As the review requested by the Chief Justice moves forward, we hope it urgently addresses the judicial imbalances caused by abusive forum shopping.
• Finally, before Congress, there is pending, bipartisan legislation that would help reduce abusive patent litigation. We are supportive of the goals of this bill, which would restore access to the Inter Partes Review program and increase transparency and accountability. It makes clear that the PTO is the most effective forum for reviewing patent validity, giving the Office the opportunity to double-check its own work in an efficient, expert, and cost-effective way. We and a broad cross-section of supporters rallied behind this program back in 2011 when it was enacted as part of the America Invents Act with resounding bipartisan support, and it’s time to live up to its original purpose.

With changes like these, we are optimistic that the patent system can get back to what it is intended to do: preserve the U.S. culture of innovation, advance the development of new technology, and reward entrepreneurs who are building new products that benefit American consumers and people around the world.

by Halimah DeLaine Prado via The Keyword