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Professors Brief Capitol Hill Staffers on Proposal to Weed Out ‘Bad Patents’

On Thursday, October 17, a Capitol Hill staff briefing will take place at 3:30 PM in 226 Dirksen Senate Office Building on a proposal to increase the amount of time that patent examiners at the U.S. Patent and Trademark Office have to examine patent applications. At the briefing, Professors Michael Frakes of the Duke University School of Law and Melissa Wasserman of the University of Texas at Austin School of Law will present findings from their paper, Irrational Ignorance at the Patent Office , recently published by Vanderbilt Law Review. While the professors’ conclusions regarding increasing time spent by examiners on patent applications are seemingly innocuous, the entire paper is infected with the “bad patent” premise that has proven to be incredibly detrimental to the U.S. patent system in recent years. Branded as a work that updates prior research on patent quality produced by law professor Mark Lemley, the Frakes and Wassserman paper concludes that the costs of increasing USPTO resources for weeding out “bad patents” during the patent prosecution process are far outweighed by the costs borne by society in waiting for the courts to invalidate those patents during litigation.

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