Opinion: Keep Going Squires USPTO: Inventors Want a Streamlined Claim Set Pilot Program 2.0

Under today’s patent system, inventors are only allowed to procure one type of patent—the standard utility patent. Despite the amount of power in the standard utility patent, this restriction oppresses the American inventor. Large numbers of people cannot afford the costs to procure and enforce the standard utility patent, and for many of the ones who can, it often does not pack enough firepower to allow them to fully recover. Because each invention is different, each instance of infringement is different. A single $20,000-$30,000 utility patent is not even close to being capable of addressing every one of those instances. The solution is very simple—different types of patents must be created.

The current administration is doing a great job of making this a reality. For instance, several months ago the Squires U.S. Patent and Trademark Office (USPTO) implemented the Streamlined Claim Set Pilot Program. This initiative employs a core aspect of the reform proposal called Patent Durability (see: “Why the DOGE Should Take Aim at the USPTO”) by promoting reduced claim sets. Its incentive—prioritized examination—is better than the one contemplated by the initial Patent Durability proposal, and is on the right track toward giving inventors the right to partially opt out of the one-size-fits-all system that is currently dictating recovery. Way to go Squires USPTO.

Streamlining Equals Savings

If you’re an American inventor, you should be thrilled with what the USPTO is doing, and you should tell anyone you know at the USPTO and Congress that not only must this Pilot be extended, it must be expanded upon to include originally filed applications in addition to pending ones. If you were allowed to opt into this Pilot when originally filing your patent application, your patent would have less firepower, but importantly—it would cost less to procure and enforce, and be issued faster.

For instance, attorney drafting time would be significantly reduced because fewer claims and associated disclosure would be needed, attorney prosecution time would be significantly reduced because there would be less to fight about with patent examiners, and attorney litigation time would also be significantly reduced because there would be less to fight about with other attorneys. And as bonus—your incentive for opting into this Pilot—prioritized examination, would cause your patent application to move through the system faster.

At present, your attorneys have no reason to constrain themselves during drafting to only one independent claim and a few dependent claims. Being prudent, they operate based on the fixed three independent and 20 total claims construct that the USPTO gives them. Expanding the Pilot to include originally filed applications would provide the necessary incentive to get everyone out of this construct. In the meantime, you would pay thousands less for a patent issued pursuant to such a Pilot.

In one example, if a patent attorney has a billable rate of $350 an hour, and spends ten hours less to draft and file a nonprovisional patent application limited to one independent claim and a few dependents, and then spends another five hours less to prosecute the patent application with a patent examiner, you would save on average $5,250 to procure your patent. Furthermore, prioritized examination currently costs small entities $2,000 and large entities $4,000. This means your true procurement savings would be between $7,250-$9,250, depending on whether you are a small or large entity.

Furthermore, if you were to get into litigation, the savings would be massive—consider that an average start to finish patent litigation may cost $1 million. Imagine if the patent in question were restricted to only one independent claim and a few dependents. Sure, many patent litigations are based on only one independent claim, but a large number of them are based on wastefully large numbers of claims. Expanding this Pilot to include originally filed applications would give you the option to procure a less powerful patent that can return some of that waste back into your bank account.

Don’t Stop There

And finally, the Squires USPTO must not stop at expanding the Pilot to include originally filed applications. In earlier articles I’ve authored, I set forth the legal mechanism to make patents and their costs fully variable. The Squires USPTO has taken a very important step in ascribing a monetary value (e.g., prioritized examination) to the right to have one independent claim and 10 total claims in a patent application. However, monetary values must be ascribed to each of the other rights in the bundle that comprises the utility patent. Yes, this means patent damages, patent assertion power, inter partes review institution fees, patent term, 35 U.S.C. 101/103 requirements, and others must all be itemized and made a variable part of patent construction—this is the real path to free the American inventor.

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Author: maxkabakov