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.