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Office (USPTO) and the courts scrupulously protect patent rights and rigorously enforce patent law.14

Concerns over questions of patent policy have previously led the National Academies to conduct an extensive study of the field, emphasizing questions related to innovation and technology.15 That study explored stresses in the system and suggested remedies to promote vitality and improve the functioning of the patent system. This committee believes that several of those recommendations are particularly important, and they are reflected in the first three patent system action items contained herein.

The first priority with regard to patent reform is for Congress and the administration to increase the resources available to the USPTO. Patents are now acquired more frequently and asserted and enforced more vigorously than at any time in the past. That surge in activity is indicative that business, universities, and public entities attach great importance to patents and are willing to incur considerable expense to acquire, exercise, and defend them. There is evidence that the increased workload at the USPTO, with no significant concomitant increase in examiner staffing or other resources, has resulted in a decline in the quality of patent examinations and increased litigation costs after patents are granted.16 Earlier reports by the National Academies and the Council on Competitiveness identify increasing USPTO capabilities having high priority.17

The National Academies report outlines how additional resources should be used. This includes having the USPTO hire and train additional examiners and implementing more capable electronic processing. It also notes that the USPTO should create a strong multidisciplinary analytical capability to assess management practices and proposed changes; provide an early warning of new technologies proposed for patenting; and conduct reliable, consistent reviews of reputable quality that address officewide performance and the performance of individual examiners.18

The second important action is to harmonize the US patent system with systems in other major economies by instituting postgrant review and moving from a first-to-invent to a first-inventor-to-file system. In addition to bringing the United States more in line with the patent policies of the rest of

14

See http://www.federalreserve.gov/boarddocs/speeches/2004/200402272/default/.

15

National Research Council. A Patent System for the 21st Century. Washington, DC: The National Academies Press, 2004. P. 18.

16

J. L. King. Patent Examination Procedures and Patent Quality. In W. M. Cohen and S. A. Merrill, eds. Patents in the Knowledge-Based Economy. Washington, DC: The National Academies Press, 2003. Pp. 54-73.

17

See National Research Council. A Patent System for the 21st Century. Washington, DC: The National Academies Press, 2004, especially pp. 103-108; Council on Competitiveness. Innovate America. Washington, DC: Council on Competitiveness, 2004, especially p. 69.

18

See National Research Council. A Patent System for the 21st Century. Washington, DC: The National Academies Press, 2004. Pp. 103-108.



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