Does America’s Patent System Need to Be Saved?

The New York Times recently ran an editorial with the headline “Save America’s Patent System.”

But why does the Times think that the patent system needs to be “saved”?

The editorial board initially focuses on the use (and arguably the abuse) of patent rights in the field of prescription drugs:

The injector pen is not, by any stretch, a new invention. Drugmakers of every ilk have been using it for decades to deliver all sorts of crucial medications into the bloodstream. By adding this old technology to its insulin drug, Glargine, however, the pharmaceutical giant Sanofi was nonetheless able to secure additional patents for a lucrative product. The drug’s existing patents were expiring, and new ones enabled the company to maintain its monopoly — and the bounty that goes with it — much longer.

The board points out that other drugmakers can extend their patent monopolies by making small tweaks to patented products – delivering medication in the form of a tablet instead of a pill, for example.

Many drugs (as well as other products) are protected by a “patent thicket” – not just a single patent but an interlocking collection of patents designed to exclude competitors and thus keep prices up.

According to Yale Insights, a “patent thicket” is

a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.

According to the Times,

Drugmakers for decades have argued that patents are essential to American innovation. For all that lip service to medical advancement, though, a recent investigation by the House Oversight Committee concluded that market share is more likely the point. Twelve of the drugs that Medicare spends the most on are protected by more than 600 patents in total, according to the committee. Many of those patents contain little that’s truly new. But the thickets they create have the potential to extend product monopolies for decades. In so doing, they promise to add billions to the nation’s soaring health care costs — and to pharmaceutical coffers.

The Times editorial board concludes that the US Patent and Trademark Office (USPTO) is “in dire need of reform.”

It is, according to the Times,

a backwater office that large corporations game, politicians ignore and average citizens are wholly excluded from.

The Times thus suggests the following reforms:

• Set higher standards for what deserves patent protection.
• Cap the number of times an inventor can resubmit a rejected application, in order to reduce the administrative burden and backlog.
• Improve the process for challenging “bad” patents.
• Eliminate the “revolving door” between the USPTO and law firms that practice patent law.
• Change the USPTO’s fee structure so that it’s not incentivized to issue (potentially bad) patents. Make most fees charged when a patent application is filed, rather than when a patent is issued.
• Increase collaboration between federal agencies with an interest in patented technologies.
• Appoint more public representatives to the patent office’s public advisory committee.
• Establish a public advocate service similar to the one that exists at the Internal Revenue Service
• Pass the Restoring the America Invents Act.