“Patent quality” is one of those terms that gets thrown around a lot. Everyone, it seems, agrees that the [define term=”USPTO”] could do a better job on patent quality. Why is it that poor quality patents issue in the first place?
This is a simple question with a complicated answer. In this post, I’ll look at one reason poor quality patents issue: lack of good search tools.
Examining patents has a number of pieces to it. One of the most critical is the search for Prior art is the knowledge in the field of a patent that was publicly available before the patent was filed.. For every patent application, a patent examiner searches through a number of different sources to try to find patents, patent applications, articles, websites, etc. that describe the invention that’s being claimed in the application.
But one source isn’t being used much, if at all: videos. And in the world of high tech, videos available on the Internet are full of information that could be useful to a patent examiner.
For example, here’s a video of Jeff Han giving a TED talk in February 2006. I encourage you to watch the whole video, keeping in mind that this was early 2006. Apple didn’t release the iPhone until over a year later, on June 29, 2007. And remember that “pinch to zoom” patent that Apple tried using against Samsung? That was filed on January 7, 2007.
The Jeff Han video clearly discloses pinch to zoom, nearly a year before Apple filed its patent application. While it’s true that the patent was eventually invalidated, it should never have issued. (And I’m sure there are many more “gesture” patents that are disclosed in this video, too.)
This is not to blame the examiner who allowed the Apple “pinch to zoom” patent. Patent examiners are not encouraged to search videos, and the rules don’t make it easy to cite a video in an office action. As I understand it, an examiner would have to take screenshots and transcribe the video herself, which would consume a huge chunk of the time that an examiner gets to examine an application.
If we’re serious about patent quality, examiners need to be able to find everything that’s out there. There are software tools to screenshot videos, and people could be hired to transcribe them. But examiners don’t have that help, and, in fact, many patent examiners are using outdated, inefficient equipment and software. It’s no wonder patents like “pinch to zoom” get issued.
Patent examiners need the right tools to do the job. Otherwise, even if we do manage to fix the Patent and Trademark Office, informally used interchangeably with USPTO. culture of poor quality patents, we’ll still see lots of bad patents get issued.