Patents and Public Domain: Improving Patent Quality Upon Reexamination

Through an examination of the most recent US Patent and Trademark Office (USPTO) reexamination filing data up through December 31, 2007, this report finds that reexamination is an effective process for raising substantial new questions of patentability. Since over ninety percent of all reexamination requests are granted by the Office of the Patent Commissioner, an overwhelming majority of reexamination requests raise substantial new questions of patentability. For ex parte, over three-fourths of the time, these requests narrow or cancel the patent claims in question, showing that the substantial new questions of patentability raised were so strong that the examiners were made to rethink the initial grants. This is even more true for
inter partes reexamination, where 64% of all reexamination requests resulted in canceling the claims altogether. This report begins with an explanation of current patent policy in the United States, defines
the problem with patent quality and explores the implications for a robust public knowledge commons. The following explanation of current reexamination procedures informs a detailed examination of reexamination filing trends. Finally, the report concludes with a survey of various proposals for patent policy reform and makes three recommendations for improving patent
quality for the purpose of expanding and defending the public domain.