Much has been written on the subject of bad patents. While many people state that the number of bad patents issued by the U.S. Patent and Trademark Office (U.S. P.T.O.) is increasing, a bad patent may in effect be in the "eye of the beholder." There is no simple definition of a bad patent. Is a bad patent an overly broad patent? Is a patent bad if it is too narrow to be enforceable? Is a patent bad if an ordinary person not even a person skilled in the art considers it to be obvious? Is a patent bad because it covers subject matter that may later be held to be unpatentable?
In some cases, a bad patent has no effect on the public. One category of bad patents are those that can be identified as "vanity patents." These are patents that are issued to an inventor who has no intention to use or enforce the patent but is happy to have obtained a document with a gold seal from the U.S. P.T.O. These types of patents may have claims that are extremely narrow such that they would never be infringed. Should this be considered a bad patent?
A second category are those patents that are granted for common objects or methods that appear obvious to an ordinary person. These patents may have merit or they may be granted only because material art was not disclosed by the applicant and was not readily available to the examiner. For example, U.S. Patent 5,708,984 (Socks with color indicators to facilitate matching of components of a pair) claims a process for making pairs of socks of a predetermined size by matching the threads in the toe seams of the socks, which is essentially a method of matching socks. Although art was cited during prosecution of the application, it was only when new art including catalogs showing pictures of socks was cited in a request for reexamination were the claims found to be unpatentable.
A third category of bad patents are those that are obtained by a corporation mainly for the purpose of increasing the number of patents in their portfolio without focusing on the quality of the patents.
A fourth category and the subject of many articles are patents for software and business methods. The position taken by many commentators is that a proper search of the art was not conducted and/or the art is not readily available to the examiner. While 37 C.F.R. 1.56 requires that "each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the [Patent] Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability" there is no requirement for an applicant to conduct a search of the art.
There are ways for a third party who is aware of prior art to bring it to the attention of the examiner but these are limited. 37 C.F.R. 1.291 permits the filing of a protest but the protest has to be filed prior to the date the application is published or a notice of allowance is mailed, whichever occurs first. In practice, the use of this procedure is rare. Another way to have information brought to the attention of a U.S. examiner is to bring it to the attention of the prosecuting attorney. Pursuant to the disclosure requirements of 35 C.F.R. 1.56 the attorney would be obligated to bring this information to the attention of the examiner in an information disclosure statement. This procedure can result in the information being considered during prosecution before a patent issues rather than in a request for reexamination. Similarly, if an applicant has corresponding applications or patents in other jurisdictions, it may be possible to use a procedure available in one of those countries to cite art that would obligate the applicant to disclose it to the U. S. P.T.O. For example, it may be possible to oppose a patent application or patent by citing references that are not before the U.S. examiner and are according to U.S. rules material to patentability.
As long as there are patent systems, there will be complaints about patents. However, with more and more information available on-line and more information being shared by patent offices, there is a possibility that the number of certain types of "bad" patents will decrease.
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