Patents in the U.S. Are 70% of U.S. Patents Defective?

The confirmation hearing last week for John Squires, who is President Trump’s nominee to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), prompted me to speak today about this confluence of important issues. The confirmation hearing for John Squires last week, President Trump’s nominee for the position of Under Secretary of Commerce and Director of the United States Patent and Trademark Office was what prompted me to speak today about these important issues. The confirmation hearing for Squires took place on Wednesday May 21, in front of the Senate Judiciary Committee. In general, the nomination and the confirmation of a USPTO director is not political – at least in the traditional R against D sense. Squires non-political hearing was unfortunately grouped together with the highly political confirmation hearings of several nominees for high ranking positions at the Department of Justice. So, political grandstanding because of the presence of DOJ nominees did needlessly taint the Squires confirmation process from the get-go.

Nevertheless, in the little time Squires was given to speak he said his focus will be on making sure patents are, in his words, “born strong”. The high error rate of inter partes review (IPRs) by the PTAB is a factor that ties the importance of stronger patents. Squires’ comments in this regard were in response to a Senator Cruz question about the PTAB. Squires said: “If you examine the data, it is clear that there are concerns.” IPRs have a 68% defect rate; if the American patent system was a factory, 68% of the products we put out are found defective in a later proceeding.”

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This response to Senator Cruz has more than anything caused the greatest concern. Squires' focus on better quality examination has led some to believe that he is saying the U.S. Patent system is suffering because of the issuance low-quality patents. This is like putting fingers on a chalkboard for patent holders. This is because the narrative of low-patent-quality is simply not true. The Patent Office conducts a rigorous review of examiners' work every year. The Sunwater Institute published an independent analysis in September 2024 that dispelled the myth of low-patent quality. The Sunwater report concluded that examiners were more likely to reject patents which should have been granted than to grant patents which should have rejected. But the existence of this myth about widespread, low-quality patents has cause great pain to innovators who themselves invent, own and then commercialize their innovations.This history, which is full of deep-seated emotion and a sense of betrayal, is why some who listened to the Squires confirmation hearing last week became concerned–having almost a flashback to everything that has transpired over the last generation leading up to this moment. Many of these patent owners have lost everything. They’ve been kicked repeatedly. They have seen the way that the argument about low-patent quality has infiltrated debates on patents. So, it is understandable that this group is skeptical.

But does Squires believe the Patent Office is really issuing low quality patents and that is the problem? Does he think the PTAB is overly active and should only focus on correcting errors where they are obvious? Given how little time Squires was given to speak, and how he was repeatedly asked irrelevant “gotcha” questions, it is impossible to really know what Squires believes, which is why the responses to the written questions he receives will be extremely important.

I’m told that Squires is a strong believer in the patent system and U.S. patents and like Commerce Secretary Howard Lutnick is not a fan of the PTAB invalidating so many patents. He can and should also say that the high defect rate suggested by PTAB final written decisions suggests that there is a fundamental problem with the approach of the PTAB, not that patent examination quality is unacceptably poor. He can and should also say that the high defect rate suggested by PTAB final written decisions suggests there is a fundamental problem with the approach of the PTAB, not that patent examination quality is unacceptably poor.

Patent owners are no doubt hoping Squires will signal in his written responses that he too is a believer in the U.S. system and U.S. inventors, that while patent examination can always be better and will be streamlined through the use of new tools, the patents being issued today by the Office are good and reliable, patent examiners do a good job, and it is time for the PTAB to recognize that never-ending challenges to patents must become a thing of the past.

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Gene Quinn

Gene Quinn is an expert on patent law, innovation policy and patent law. Mr. Quinn was twice named as one of the 50 most influential people in the world

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