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 USPTOUnited States Patent and Trademark Office. See also PTO. knew about the fraud and issued the patent anyway. But it’s much worse than the Times article describes.
According to the prosecutionPatent prosecution is the process of applying for a patent, along with any further proceedings before the USPTO. history of the patent, the USPTOUnited States Patent and Trademark Office. See also PTO. 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 USPTOUnited States Patent and Trademark Office. See also PTO.. 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 USPTOUnited States Patent and Trademark Office. See also PTO. 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 USPTOUnited States Patent and Trademark Office. See also PTO.. 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 USPTOUnited States Patent and Trademark Office. See also PTO. 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.
