Innovation at risk: Patent Office overwhelmed and losing ground

If the Patent and Trademark Office had a theme song, many employees would probably suggest an old Johnny Cash song called "Five Feet High And Rising". Professor Mark Lemley tells FederalNewsRadio 450,000 patent applications are filed each year on top of a nearly one million application backlog. According to recent reports, even if new filings were to stop today, "it would take the agency's 9,500 employees two years to clear the backlog."

Lemley tells FederalNewsRadio the problem is not the behavior or the experience of the Patent examiners.

I think they're doing the best job that they can under a very difficult set of circumstances. The problem is that they don't have the time and the resources they need to examine the all of the applications thoroughly and the rules that we've set up, they way we compensate examiners, and just the fact that there are always more applications coming in through the door tends to push it towards an assembly line type of operation.

Making matters worse, BusinessWeek reports "the Patent Office may soon run short of money. The office is entirely funded by patent application fees - it expects to take in $2 billion in 2009 - and those applications are projected to drop 2% to 10% this year as companies deal with the slumping economy." While a drop in applications will reduce the workload, Lemley says what little funding that does come into the Office is at risk.

Congress has had a tendency to take away some of that fee revenue and use it towards the general federal revenue and I think that's probably going to be an attractive alternative for Congress because of the substantial budget deficit.

Lemley is director of the Stanford Program in Law, Science and Technology.

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On the Web:

BusinessWeek - Are Patent Problems Stifling U.S. Innovation?

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