The United States Patent and Trademark Office (USPTO) is the cornerstone of America’s innovation engine, issuing patents that fuel technological advancement and economic growth. However, perceptions of poor patent quality, driven by vague claim language, inconsistent examinations, costly litigation, and occasional bad rulings by the Court of Appeals for the Federal Circuit (CAFC) or the Patent Trial and Appeal Board (PTAB), have justifiably undermined public confidence in the patent system.
The USPTO leadership’s failure to adequately address these quality issues has created an opening for Big Tech and other patent critics to amplify the problem through their “bad patents” political narrative, further eroding trust and impeding American innovation. This has ignited two decades of an all-of-government push to undermine patent protections, disproportionately impacting independent inventors and startups, the primary drivers of transformative innovations historically brought to market.
Historical Context: The eBay v. MercExchange Setback
The erosion of patent system trust was exacerbated by the 2006 Supreme Court decision in eBay Inc. v. MercExchange, L.L.C. (547 U.S. 388, 2006), which made it significantly harder for patent holders to secure permanent injunctions. Previously, courts granted injunctions almost automatically upon finding infringement. The eBay ruling reduced injunction grants by 91.2% for non-practicing entities and 66.7% for practicing entities, according to a 2024 study by Kristina M.L. Acri. Critics argue this weakened enforcement, particularly for startups and independent inventors who rely on injunctions to protect their innovations against larger infringers. The eBay ruling, viewed by some as a devastating setback for small entities, fueled a narrative of a government-driven erosion of patent protections, disproportionately harming independent inventors and startups who have historically been the primary drivers of transformative technologies.
The “Bad Patents” Narrative and Its Consequences
The USPTO’s failure to address patent quality concerns has allowed Big Tech and patent critics to exploit the “bad patents” narrative, portraying vague or overly broad patents as systemic flaws. This narrative gained traction post-eBay, as weakened enforcement emboldened infringers and fueled litigation. The resulting distrust prompted legislative and judicial actions, such as the America Invents Act (2011) and Alice Corp. v. CLS Bank (2014), further complicating patent enforcement, especially for software and business method patents.
These changes have disproportionately harmed independent inventors and startups, who lack the resources to navigate complex litigation, stifling their ability to bring innovations to market. With fewer startups bringing innovations to market, American innovation slowed contributing to a shift in global technological leadership primarily to China. For example, in 2007, the U.S. led in 60 of 64 critical technologies, per the Australian Strategic Policy Institute (ASPI). By 2018, China overtook the U.S. in AI startup funding (48% vs. 38% globally), and by March 2023, China led in 37 of 44 critical technologies, increasing to 57 of 64 by 2023.
The USPTO Must Fix Its Quality Perception Problem
To tackle these issues, the USPTO should implement a Patent Quality Program (PQP) based on the National Institute of Standards and Technology (NIST) Quality System, utilizing the Manual of Patent Examining Procedure (MPEP) as the foundation for quality metrics and incorporating feedback from the CAFC and the PTAB. By aligning NIST’s principles of leadership, customer focus, and process excellence with MPEP standards and judicial/administrative insights, while addressing potential adjudication errors, the USPTO can ensure patents are clear, robust, and trustworthy.
Why the NIST Quality System?
The NIST Quality System, rooted in the Malcolm Baldrige National Quality Award framework, emphasizes leadership commitment, customer-driven excellence, data-driven decisions, and continuous process improvement. For the USPTO, this means fostering a culture where patent quality, defined by MPEP compliance, is paramount. The MPEP provides objective standards, such as novelty (MPEP § 706.02), non-obviousness (MPEP § 706.03), and claim clarity (MPEP § 2173), to measure quality. CAFC and PTAB rulings offer critical feedback on quality performance, revealing deficiencies in examination, adjudication, or even the MPEP itself. Importantly, incorrect CAFC or PTAB decisions, such as misinterpretations of MPEP § 101 (patentable subject matter) or § 112(b) (claim indefiniteness), can also contribute to perceived quality failures. By identifying and addressing these issues, the USPTO can implement targeted corrective actions to strengthen the system at its source.
Core Components of the NIST-Based Program
- Leadership-Driven Quality (NIST Category 1)
NIST underscores leadership’s role in setting a quality vision. USPTO leadership must champion a culture where MPEP compliance is non-negotiable, ensuring patents withstand CAFC and PTAB scrutiny while acknowledging that judicial errors can misalign with MPEP standards. Clear goals, such as reducing invalidations due to MPEP § 112(b) (claim indefiniteness), should guide resource allocation for training, technology, and feedback systems. Leaders must use CAFC/PTAB feedback to communicate expectations, distinguishing between examiner errors and adjudication missteps, ensuring examiners understand their decisions’ real-world impact. - Customer-Focused Excellence (NIST Category 2)
NIST prioritizes meeting customer needs. The USPTO serves inventors, businesses, examiners, and the public, who often cite inconsistent MPEP application (e.g., § 112(a) for enablement) or erroneous CAFC/PTAB rulings as pain points. Regular stakeholder engagement through surveys, public forums, and industry panels can identify gaps. For example, CAFC rulings on claim clarity or PTAB invalidations for inadequate prior art (MPEP § 904) should inform examiner guidelines, while also flagging potential judicial misinterpretations of MPEP standards. This ensures patents meet both legal and practical expectations. - Data-Driven Process Management (NIST Category 6)
NIST stresses measurable outcomes. The USPTO should develop MPEP-based key performance indicators (KPIs), validated by CAFC/PTAB feedback, such as:- Percentage of patents compliant with MPEP § 2173.05(b) (claim clarity): Tracks issues flagged in CAFC indefiniteness rulings, accounting for potential judicial errors.
- Prior art search effectiveness per MPEP § 904.02: Benchmarked against PTAB invalidation rates, with analysis of adjudication accuracy.
- PTAB appeal reversal rates tied to MPEP § 706: Measures errors in novelty/non-obviousness, distinguishing examiner versus PTAB errors.
- CAFC/PTAB invalidation rates for MPEP § 112(a): Evaluates enablement/written description compliance, noting judicial misapplications.
By analyzing these metrics alongside judicial feedback, the USPTO can identify systemic issues (e.g., vague software claims or inconsistent CAFC rulings) and implement fixes, such as refined MPEP guidelines or examiner training.
- Workforce Empowerment (NIST Category 5)
NIST views employees as critical to quality. Examiners need robust support to apply MPEP consistently, including AI-assisted tools for prior art searches (MPEP § 904) and continuous education on complex sections like § 101. A structured feedback loop from CAFC/PTAB rulings, delivered through case studies or workshops, can clarify decision impacts, highlighting both examiner errors and adjudication inaccuracies (e.g., a PTAB misapplication of MPEP § 706.03 for obviousness). Peer reviews and recognition for MPEP-compliant work foster a motivated, quality-focused workforce. - Continuous Improvement and Results (NIST Categories 4 and 7)
NIST emphasizes iterative refinement and measurable results. The USPTO should audit issued patents for MPEP compliance, using CAFC/PTAB feedback to identify patterns, such as frequent § 101 rejections in software patents or judicial errors in claim interpretation. Pre-issuance quality checks, like automated audits for MPEP § 2173.05(c) (claim specificity) or second reviews for high-risk applications, can prevent errors. These measures, informed by judicial insights and adjusted for adjudication inaccuracies, reduce post-grant challenges and litigation, aligning with NIST’s focus on sustainable excellence.
Implementation and Challenges
The USPTO should pilot this program in high-litigation areas like software or biotechnology, where MPEP § 101 and § 112 issues are prevalent. A task force of examiners, CAFC/PTAB liaisons, NIST experts, and patent attorneys could design and monitor the program, using MPEP-based KPIs and judicial feedback to track progress while accounting for potential adjudication errors. Challenges, such as resource constraints or parsing complex judicial feedback, are significant but addressable. Phased implementation and early successes, like reduced PTAB reversals or fewer erroneous CAFC invalidations, can build momentum. Publicly sharing aggregated MPEP compliance and judicial feedback data will enhance transparency and trust.
The Path Forward
A NIST-based Patent Quality Program, anchored in MPEP metrics and enriched by CAFC/PTAB feedback, offers a transformative vision for the USPTO. By embedding leadership commitment, customer focus, workforce empowerment, and data-driven improvement, while addressing potential judicial errors, the program ensures patents are legally robust and innovation-friendly. This approach aligns examiner practices with accurate judicial outcomes, reducing litigation and strengthening the patent system.
The USPTO has a chance to set a global benchmark for patent quality. By adopting NIST’s proven framework, leveraging MPEP standards, and integrating CAFC/PTAB insights with scrutiny for adjudication accuracy, it can issue patents that empower innovators and withstand challenge. The time to act is now, our inventors, industries, economy and national security demand a patent system that delivers excellence.
Paul Morinville is Founder and Executive Director of SPARK Innovation. SPARK Innovation strives to create an policy environment where the conception, protection, and commercialization of technologies critical to our economic and national security prosper thereby enabling the United States to take back the global technological lead from China. Paul is an inventor and has been an executive at multiple technology startups including computer hardware, enterprise middleware, video compression software, artificial intelligence, and medical devices, and has licensed patents in the U.S. and China.
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