What is patent quality?

I'd like to explore patent quality more formally rather than just posting numbers to a blog. More importantly, I'd love to hear your feedback, and, in particular, any way I can improve my understanding of patent quality. If you have a lot of feedback or interest, please stop by the Technology Patent Network conference tomorrow in San Francisco, where I'll be talking about patent quality from 4:15 to 4:45.

Patent quality has received a bit of attention recently as patent systems around the world continue to self-evaluate with respect to others, as the case law continues to clarify that not all patents are created equal, and as patent tool vendors successfully push value-added insights. Still, there seems to be quite a bit of disagreement on the subject.

In 2017, former Chief Judge Paul Michel stated: "I think at the end of the day, patents are either valid or invalid as a legal instrument and therefore it's not very helpful to talk about quality or 'good' or 'bad.' . . . They're either valid or not valid and with respect to someone practicing the technology, the patent is either infringed as properly construed or it is not infringed." At the risk of oversimplifying, one extreme seems to be the idea that patent quality = validity.

Also in 2017, Professors Arti Rai and Colleen Chien stated: "Patent quality means agency decision making that is appropriate as a matter of both product and process – that is, legally correct, clear, consistent, and efficient." At the risk of oversimplifying, another extreme seems to be the idea that patent quality includes everything that any person might care about for any patent.

I don't think it's incredibly important to agree on what "patent quality" means, mainly because we're not making real decisions based on the amorphous term, "patent quality." Instead, 
  • Policy decisions are being made based on the quality of the trade-off between the inventors and the public (i.e., whether the inventors are being properly incentivized, over-incentivized, or under-incentivized for the public disclosure of their invention(s)). Let's call this "Patent Trade-Off Quality," and it may also be based on: 
    • the likelihood that the invention(s) would have been discovered anyway, and, if so, how much later,
    • the total benefit to society with the invention(s) as compared to society without the invention(s), after discounting any value that might have been retained even if the invention(s) were kept secret, and
    • the ease of achieving and building on the societal benefits from the text.
  • Business decisions are being made based on the quality of the patent resource(s) at issue, based on their expected value, less expected costs, of a patent asset at optimal future time(s), using optimal future strategies and assuming expected oppositions and strategies by third parties, including strategies involving third party patents (some of which may also cover the same marketable features). Let's call this "Patent Resource Quality," and it may also be based on:
    • unknowns in technology and law over time,
    • the traditional factors for calculating patent royalties, and
    • information available at the time patent quality is being calculated.
  • Legal decisions are being made based on the percentage of a Patent's Resource Quality (see above) that is preserved as a result of patent services, based on information available or reasonably accessible at the time of the patent services. Let's call this "Patent Quality of Service."
  • Decisions of whether or not to pursue and protect technology are being made based on, assuming optimal Patent Quality of Service (see above), the Patent Resource Quality (see above) of a patent asset or potential patent asset that is focused on a particular invention. Let's call this "Invention Quality." If measured relative to a domain of inquiry, the average patent quality for the domain may be subtracted from the Invention Quality.
  • Decisions about whether the patent office as a whole, art units, or examiners are performing well for a patent in question are based on, for each patent, the percentage of the Patent's Resource Quality that is preserved as a result of examination, based on information accessible at the time of examination, after subtracting unnecessary costs by the patent owner and/or third parties to later resolve issues that could have been resolved during examination. Let's call this "Examination Quality."
What if my patent scenario doesn't readily convert to expected value? Well, presumably you have justified your patent spend in a business context. If so, you have roughly considered the expected value and the costs involved.

I would love to hear your thoughts! I'll post more on each topic later, as the topics adapt based on your comments.

Comments

  1. For the sake of clarity and good policy making (and hopefully not being too contrarian), I would try to divorce the notion of "quality" from the economic value derived from a patent. If we blend these two separate (but sometimes related) concepts together, it can be difficult to pinpoint the part of the "quality" equation that can or should be addressed.

    I would agree with Judge Michel here, and define quality as the measure of consistency between examination and any subsequent evaluation of a patent's validity (in post-grant proceedings or litigation). If the patent office grants a large number of patents that are later invalidated, this directly implies that those later-invalidated patents were of a "poor quality" (i.e., that examination did not properly evaluate the patentability of the claimed invention). In theory, this metric can be tracked to assess the impact of rulemaking and other policy decisions.

    The extent to which a particular patent provides an economic value to one or more entities is a separate matter, in my opinion. There's almost no policy that could be enforced fairly and consistently that involves a federal agency making a decision as to which inventions are of a sufficient "quality." While your "Patent Trade-Off Quality" makes theoretical sense, the inquiries upon which it is based are almost impossible to answer without speculation and subjective evaluations. For instance, determining the likelihood that an invention would have been discovered with or without a patent incentive is a complete guess. Even more subjective is the idea that "societal benefits," which almost certainly would lack consensus, as one person's societal "benefit" is another person's societal "cost."

    If we want to consider making policy decisions on the economic value provided by patents, it should be evaluated through measurable and empirical means. As a broad and low-resolution example, we could attempt to measure changes in the GDP attributable to patent policy decisions (where growth implies improved innovation, and lack of growth might indicate a lack of innovation or non-competitive markets). I think another potentially useful metric is the rate of new business formation, and the contribution patents make in the success of those new businesses. From an economics standpoint, an ideal market is one in which there are many small businesses in competition with each other, which should drive each other to innovate and lower prices. If patents primarily serve to protect market incumbents, it might be said that patents are a net loss for society (at least in the short term, until disclosed invention enters the public domain), as they reduce the competitiveness of the market. One way to mitigate such a net loss would be to require more enabling disclosure in the patent (to increase the value to the public).

    As to a patent's value to an organization, I don't believe that is a matter to be addressed by policy. Organizations are free to pursue, or not to pursue, patent protection. I think the burden is on them to decide whether a patent provides a "resource quality."

    Thanks for the interesting post!

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  2. Thanks for the feedback, Jordan. The patent quality buckets above are independent of the value actually derived from the patent. It's important to consider when the patent quality determination is made, and what the patent quality determination is trying to characterize.

    I think most of what you're talking about is examination quality (based on global impact) and quality of patent services (preservation of potential value). If you can't fit the issue in these buckets, the question I have is: what difference does it make? In other words, why are you trying to characterize quality?

    If a missing antecedent falls in the forest and it doesn't impact the scope of the claims or the ease of making/using the invention, does it matter? Was the missing antecedent a mistake? Yes. Was it a patent-relevant mistake? No. It's purely academic. It's equivalent to bickering about the font used on a deed.

    In other scenarios, a missing antecedent could give rise to an ambiguity that impacts the expected value of the patent, perhaps by impacting a likelihood of validity. Is that a patent-relevant mistake? Absolutely--it's a mistake caused by the quality of patent services that impacts the expected value of the property.

    How big is the mistake? Without getting into moral battleground, the one thing people could possibly agree on is how much the mistake costs. Otherwise, it's just a discussion of how you feel about the mistake versus how I feel about it. If we're going to talk about feelings, I'd rather talk about sports.

    The point of this post is to hopefully start a discussion about patent quality that supersedes feelings and politics. If there are real-world consequences that are overlooked in this framework, I'd like to change the framework to incorporate them.

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