Clog causes deadweight loss and diverts R&D.
Melancon ’18 [Matthew; March 2018; Attorney specializing in intellectual property law, written under the guidance of Professor Kay Firth-Butterfield and Professor Derek P. Jinks; Texas Law Review, “The USPTO's Sisyphean Plan: Increasing Manpower Will Not Match Artificial Intelligence's Inventive Capabilities,” vol. 96]
Third, there is also a current crisis in patent quality. If the USPTO irresponsibly grants substandard patents, then these patents are also costly to the economy. London Economics performed an analysis on patent backlogs throughout the world and estimated that granting substandard patents can cost up to $21 billion per year in economic losses in the United States alone; these losses result from "deterring valid research and having an additional deadweight loss from litigation and administrative costs of $ 4.5 billion annually." 46
Furthermore, there have been significant problems with patent quality in the past. Many within patent law are skeptical of the current trajectory of the USPTO in issuing defensible and appropriately protective patents. 47 This issue was so great that former Director Lee of the USPTO even released an op-ed piece published by Law360 to discuss the issue, stating:
When I stepped into the role as head of the United States Patent and Trademark Office a couple of years ago, one of the things I frequently told audiences of stakeholders around the country was that I looked forward to working together to further strengthen our patent system. And that effort had to include a harder look at the issue of patent quality. 48
Despite reassurances from Director Lee, there are those that remain skeptical of the current trajectory, desiring "objective, independently verifiable metrics" from the USPTO to measure patent quality. 49
Therefore, these issues - a "crippling" patent backlog, incentivizing early filing, and the costly risk of prematurely granting patents - create a globally influential tension for the USPTO: (1) spend more time and resources on a patent's examination to deter substandard patents but at the cost of potentially deterring innovation, or (2) spend less time and resources on a patent's examination to incentivize a greater number of patent filings (i.e., innovation) but at the risk of granting substandard patents and thereby cutting off areas of research and increasing litigation costs. 50