By Patrick A. Doody

Intellectual Property Partner Goodwin Procter LLP

Critics chastise the United States Patent and Trademark Office (PTO) for issuing "bad patents", or "questionable patents" or patents of "poor quality". Legions of legal scholars have alleged that the patent system is broken because there are too many bad patents, it is too hard to invalidate them, and consequently, they have advocated for aggressive patent reform. But to date, there exists no definition for these patents. Without an adequate definition, how can anyone expect to solve whatever problems are allegedly caused by these so-called "bad patents"?

A coterie of critics of the patent system alleges that there are too many "bad patents," that patent quality has decreased, the patent system is broken and that these "bad patents" are harming the economy. Despite the fact that research has shown that many of the critics’ allegations are not accurate, mostly because the critics fail to consider all the elements of a claim, the arguments advanced by the critics often find themselves cited in testimony before Congress by advocates for patent reform. This article will explore various methods of determining when a patent might be considered a "bad patent" and then will briefly discuss what appears to be the real problem.

The article will reveal that there is no definition or solution to "bad patents" and that the problem is not with the patents, but with the parties asserting the patents. Solutions, therefore, should not rely on legislative or rulemaking changes of the patent system that apply to all patents and patent holders, but rather on judicial remedies to dissuade specific litigation conduct.

One thing should be clear - the patent system does not need to become encumbered by an even thicker coat of legislative and regulatory sludge than already exists. More focused judicial solutions to curb overzealous enforcement would appear better suited to solve the problem.

Download the full text to read more about the myth of the "bad patent" and what patent reform should instead be addressing