daniel-dumbrava-YV_fBj8mckg-unsplashAs a political science student, you learn that much of what law and regulation ends up being in practice comes down to interpretation and implementation and enforcement on the part of the relevant agencies. Laws don't mean much if they're not enforced, or if the enforcement ends up being something different entirely from the original intent of lawmakers and regulators, but that, as we learned, is the nature of a government that relies upon a bureaucracy of numerous agencies and thousands and thousands of employees that can operate with semi-autonomy absent any direct guidance from above.

The U.S. Patent and Trademark Office is squarely within that bureaucracy, and while it's as much subject to the same vagaries as any other agency, it may be taking its own unique approach to patents perhaps in contravention to current law.

Alex Moss of the Electronic Frontier Foundation (EFF) makes the case that the Patent Office is actively seeking to ignore a Supreme Court ruling that would ostensibly restrict what can be patented in favor of its own guidance that would explicitly ignore the ruling and keep patent eligibility more open. The issue dates back to the Supreme Court's ruling on Alice v CLS Bank in 2014, in which the court ruled that Alice's patents on escrow systems were invalid, as abstract ideas could not be patented simply because they were performed on a computer.

The ruling seemed to be the death knell for any number of other overly-broad patents that patent trolls pursue in an attempt to extort businesses, save for the intervention on the part of the Patent Office. As Moss explains, the agency and its director decided last year to work around the court decision, even offering guidance on how to avoid the particularly sticky wicket of a ruling from the highest court of the land.

It's hard to understand the Patent Office's thinking on the directive. More approved patents might look good as a number on a page, but more broad, indefensible patents that result in court cases and that are eventually overturned would seemingly reflect poorly on the Patent Office's ability to do its job correctly, and would raise eyebrows as to what's going on in the office, assuming that the agency rises to the level of concern for anyone in a position of power. For now, it's seemingly open season for patent trolls, at the expense of the innovators who may get shut out or shut down by bogus infringement claims in the future.

Join for Free Business Risk Assessment