Only if the defense will pay for it. However, given that only 1 out of 10 patents will go through a re-examination with all claims intact, paying for re-examination is a working tactic. That is, if one can wait the many years it take for a re-examination to finish.
A better approach would of course be that the PTO did not 9 out of 10 times create a patent that they later will find to be incorrectly issued. That the state has an 88% error rate when issuing 20 years patents should really not be allowed in 2013.
Corrected, 88% of the patents grant made by PTO that has been tested through an ex parte reexamination has been found to been incorrectly issued by the PTO.
The data is PTO's own yearly statistics, and is under the heading of issued certificate of reexamination, and one need to compare the period of 2011/09/30 -> 2012/09/30 to get the latest data. A certificate is the concluded decision after all the appeals are done. The statistics cover all types of patents, and all types of industries. Statistics for specific markets (say software) doesn't seem to exist.
The reason I don't bring up unchallenged patents, is that they are of indeterminate quality. The market values them less, and they shares many of the attributes of untested code. It might be good, it might be bad, but until the code is actually run and tested, nothing much can be said. Discussing the quality of untested code seems to me at least as exercise in futility. If we were to try asses the average quality of developed code, would we include untested code too, and if so, how?
On the positive side, patents that are used by entities that try to extract money from patent licensing do tend to get their patent contested. So the patents that are challenged, are also the patents that are in-use at patent suits and patent agreements.
Even if the PTO doesn't get involved, all patents get a pretty thorough pre-trial examination by the judge in the form of a Markman hearing to determine what the claims mean.
Yeah I meant more like medical examination, not entrance examination. It is generally a critical hearing because the strength of a patent often boils down to the meaning of individual claims. For example, a judge might have to define what words like "program" and "execute" mean, which can have far reaching consequences.
A judge also has the power to stop a patent from going to trial if some forms of invalidity can be shown, for example if the defense turns up prior art, or if turns out the inventors failed to file within one year of first publication or sale offer.
I think if someone was suing me that re-examination taking a long time would be to my benefit. How much does re-examination cost the defense? Does the defense typically notify PTO which claims should be invalidated and why? Why does the defense have to do the PTO's job for them?
I completely agree that the primary problem is too many patents issued for trivial, obvious or not-new technology.
Hmm, my understanding of how this worked was that re-examination was entirely independent of any lawsuit and since patents have a "presumption of validity" the fact that it was being re-examined wouldn't have any bearing on a lawsuit. That is, if you're sued you might get lucky and have the re-examination finish before the lawsuit did but it probably wouldn't?
