The New York Times Got It Wrong on Patents

On Saturday, April 16, 2022, the New York Times posted an opinion piece called “Save America’s Patent System”, calling for an overhaul of the U.S. patent system. This piece is deeply flawed and reinforces the narrative of those engaged in weakening the U.S. patent system. Here are just a few of the key issues the NY Times got wrong:

1. The 2011 America Invents Act did not help U.S. inventors and has resulted in a weakening of U.S. patents with the result that America has slipped from number one to number 11 in global innovation, according to Bloomberg.
2. The Times states “…one simple thing that officials can do right now is give patent examiners more time and resources to do their jobs.” We agree and if the USPTO’s fees were not regularly diverted away from the job of reviewing patents there would be more examiners resulting in more time for thorough reviews. Fully funding the USPTO as recommended in the STRONGER Patents Act is a key step, but the Times seemed unaware of the monetary diversion or this legislation which would better support inventors than the legislation promoted in the piece.
3. The Times conflated weak patents with patent trolls and the need for more process to challenge bad patents. Once again, the patent troll narrative is trotted out to support spurious policy changes for challenging patents. The data shows that operating companies have brought most infringement lawsuits, not bad actors holding patents just to sue.
4. To combat so-called patent trolls and these weak patents, the Times calls for passage of the Restoring the American Invents Act. As we have written previously, PTAB trials should be a cost-effective alternative to district court litigation, not an additional avenue for challenging patents. The USPTO has updated the post-grant system at the PTAB to make it a fairer and more balanced system. The RAIA would reestablish PTAB trials as a parallel avenue, thus stacking the deck against small inventors and innovators.
5. In its focus on supporting efforts that would actually weaken rather than strengthen the U.S. patent system, the editorial board completely missed the racial, gender-based, and socioeconomic barriers to inventing and patenting. Passing legislation like the Inventor Diversity for Economic Advancement (IDEA) Act would help close the gaps in our innovation ecosystem, making America more competitive and the USPTO an innovation engine.

Save the Inventor hopes the New York Times will take the time to listen to small inventors and rethink its position on what will save the U.S. patent system.