By Kevin E. Noonan —
Let’s put our cards on the table. The zeitgeist in the patent world these days is that the U.S. Patent and Trademark Office engaged in a frenzy of granting "bad" patents over the past few years, and that the issue of patent "quality" has caused a crisis in the Patent Office that cries out for "reform" (see "The IPO’s Marc Adler on Patent ‘Quality‘").
Since "one man’s ceiling is (frequently) another man’s floor," there is the distinct possibility that "quality," like beauty is in the eye of the beholder. "Everybody knows" that there are bad patents out there, but so far as I know, what "everybody knows" is in the sphere of anecdotal evidence (like many herbal cures, UFO sightings, and urban myths).
So we here at Patent Docs are posing a simple challenge for our readers. We are inviting our readers to send us the Patent Number for any patent granted between U.S. Patent No. 7,296,299, which issued on November 13, 2007, and U.S. Patent No.
5,296,299, which issued on March 22, 1994, that you believe is a "bad" patent. That’s a range of two million and one patents. It would help if the submitter told us why he or she thinks the patent is a "bad" patent, but we are most interested in obtaining as many allegations of "bad" patents as we can.
We do not want to ask for any similar number of "bad" applications for a number of reasons. First, some bad applications are easy to spot, and to dismiss – perpetual motion machines, laws of nature, and clearly unpatentable subject matter for example. Also, every American has the right to apply for a patent, even on the most simple device, and nothing in the statute permits the Office to prevent a patent application, however looney, from being filed. (And, of course, many perfectly good inventions look a little looney when they are first proposed – talking through wires, indeed!). Finally, bad applications aren’t identified as the problem, bad patents are, and that’s where we would like to keep the focus of these efforts.
We can’t predict the number of responses we will get, but we would like to see what we get once our readers get past the "peanut butter and jelly sandwich" patent and the "leaf collection bag shaped like a pumpkin" patent and the "disembodied head" patent. Also, if what "everybody knows" is correct, we should find more and more "bad" patents issuing between 1994 and 2004 or so, with a significant decline over the past two or three years (if the Patent Office’s calculus is correct that the number of "bad" patents is disproportionately reduced as overall patent allowance rates fall).
We cannot, of course, be exhaustive. But we have about 900 e-mail subscribers and get over 5,000 hits on some days, so there should be enough people reading these posts that we get a representative number of submissions. Just to be "up-front" with our own bias, we remember a website called "Bounty Quest" that offered $10,000 for prior art sufficient to invalidate patents identified on their website, and as far as we know the proprietors didn’t go broke giving out their bounties. We suspect we will not get 2,000 "bad" patents from our survey (which would be 0.1%), and frankly if we do this number would be 30- to 50-fold better than the current Patent Office quality metrics for preventing "bad" patents from issuing.
Happy hunting.
Patent Docs 
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