USPTO Issues Patent to Fraud

Photo by Alex E. Proimos, licensed under Creative Commons 2.0

Photo by Alex E. Proimos, licensed under Creative Commons 2.0

This story is so embarrassing for the U.S. Patent & Trademark Office and the patent system, I almost don’t want to write about it.

You might remember that about a decade ago, a South Korean scientist, Hwang Woo-Suk, claimed to have cloned a human embryo. Then, it turned out that the work was a fraud, and a few years ago Hwang was fired and convicted of various crimes in South Korea.

And yet, he just got a U.S. patent on his work. That is, the work that didn’t exist.

According to the NY Times article, the USPTO knew about the fraud and issued the patent anyway. But it’s much worse than the Times article describes.

According to the prosecution history of the patent, the USPTO actually relied on an affidavit from Hwang in issuing the patent. And the affidavit was submitted four years after his conviction in South Korea for embezzling his research funding.

This is what happened: The examiner rejected Hwang’s application as not teaching how to perform the cloning technique Hwang claimed. That makes sense, because Hwang didn’t actually know how to do it — he’s a fraud.

But just last year, Hwang submitted an affidavit claiming that he had actually done the things the examiner cited, and giving his expert opinion that they were within the skill of an ordinary person in the art.

One might expect the examiner to respond with peals of laughter followed by throwing the affidavit in the trash. Nope.

The examiner accepted the affidavit and issued the patent.

Inventors submit such affidavits all the time, and the affidavits are presumed to be accurate. But this is hardly a normal situation.

Hwang is a known fraud, who admitted falsifying the results from the supposed invention that he was trying to patent!

I really don’t like to beat up on the USPTO. Most of the people there work hard and do their best.

But this is nothing short of staggering incompetence. Why would you accept an affidavit from an admitted fraud? And moreover, why would you accept his affidavit on the subject of his fraud? There is no excuse for this, no acceptable way to justify it.

Hwang should not have received a patent. He didn’t invent a real cloning technique, so there’s no invention to patent. And the USPTO certainly should not take Hwang’s word for anything relating to his patent application.

There’s a larger context to this, beyond just being a humiliation for the USPTO. We’re now getting almost daily op-eds warning against reform, telling us to be careful with the patent system. We’re told that there’s a delicate balance, a “patent ecosystem” that mustn’t be disturbed.

Really?

The USPTO knowingly issues a patent on an invention that doesn’t exist by taking the word of an admitted fraud, but we can’t risk breaking the patent system?

Color me skeptical.