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September 13, 2005
U.S. Patent Quality Questioned in Industry Poll
According to this, the Intellectual Property Owners Association (IPO) finds that patent quality is deteriorating. The organization released survey results that indicate that 74% of respondents think they will be spending more on patent litigation in the next few years.
The article states that "[h]igh quality patents are usually thought of as those that will hold up if challenged in court," and points out that the USPTO is responsible for issuing high quality patents. The article also mentions that hundreds of millions of dollars are being diverted from fees paid to the USPTO to fund other government programs. It states "IPO believes the loss of funding and delays in modernizing the agency's operations have been primary causes of the current weaknesses in patent quality and the growing delays in processing."
While I don't even try to claim to know more than the IPO, I don't know that I agree with many of its findings.
First, I'm not convinced of the measure of a high quality patent. There have been numerous ways of measuring patent quality, including later citations and success in court. However, I believe that a high quality patent is one that never even needs to go to court. Sure, a patent that is well-written, clear and thorough will stand the test of litigation. However, the best patents don't require litigation to prove their value. In fact, the best patents would scare off potential lawsuits. So, I disagree that quality patents are those that succeed in court.
Second, I am not convinced that the deterioration in patent quality is due to fee diversion. While this does cause USPTO resources to be limited, I think the patent drafters need to assume some responsibility for the quality of the patents. Before I took the Patent Bar, I was convinced that upon issuance, a patent was nearly indestructible. However, I have since learned that issuance has little to do with anything other than the payment of an issue fee and maintenance fees. Litigation often proves to be the true test of patentability. Every good patent should be able to survive litigation (if it comes to that). The judge or jury is the true "Examiner" of the patent. The guy (or gal) working for the USPTO is just an expensive "trial run."
I think if every patent professional drafted patents with litigation in mind, the quality of patents would improve. This would result in reduced litigation. Even so, I admit that higher quality "trial runs" would also result in reduced litigation.
Posted by Melody Wirz at 02:54 PM.
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One of the main reasons for the compromise in quality is the lack of detail in the research done when the patent is drafted. When a lot more groundwork is done in terms of research, patents will hold up to the test of litigation and time. This requires patience and time which most people compromise on due to the high cost of research services.
Posted by: Tariq Akbar at September 14, 2005 10:11 PM
The compromise in the quality of the goods needs to be seriously looked into. Careful study of the laws will help to find out the drawbacks.
Posted by: Amber at September 17, 2005 04:54 AM
It would be a great service if you guys could offer some advice to entrepreneurs across the globe. You can find a huge community of entrepreneurs and investors (VCs, angels, etc) at The Go Big Network http:/www.gobignetwork.com . I know for a fact that these entrepreneurs have all kinds of patent questions. You may even be able to feature some of your advice on their blog at http://blog.gobignetwork.com/ . Just a thought.
Posted by: John Sanders at September 21, 2005 08:48 AM
I think that part of the problem is increasing cost pressure from clients, due to their increased demand for patents and for predictable costs.
The pressure is turned way up then on the attorneys, who must make the choice in some circumstances to lose a company's business, or to cut back on quality (i.e. time).
I think part of the solution to this problem has to lie with patent attorneys themselves. Attorneys need to start setting some boundaries, and telling their clients that they don't feel comfortable with the quality of patents they can write or produce within the company's cost demands. It's possible that some of this can be solved by firms hiring more agents, but there's a limit to that.
Attorneys need to be more concerned about quality as an issue of professional responsibility, rather than simply client demand, and they should speak out about it at inns of court and other professional organizations.
Posted by: Trevor Hill at October 23, 2005 10:05 PM
