In the last decade and a half patent quality has been at the forefront of debates about patent policy. Industry professionals of all sorts (patent holders, legal practitioners, implementers, policymakers, and academics) seem to agree about the importance of patent quality, but often the consensus stops there. It’s no wonder, because the term ”patent quality” is oftentimes left undefined in policy discussions. In fact, many disagreements about patent policy have at their root disagreements about nebulous terms like patent quality.
To improve the quality of discussion about patent policy it is important to understand and define the various aspects of patent quality. Then we can understand where there is common ground, where there is real disagreement, and where we can make progress.
In some contexts, patent quality is conflated with value. The value-driven approach can be practical amongst certain IP professionals. However, value and quality are different. In particular, some claim that “overly broad” patents are the cause of a poor functioning patent system. In this view, poor quality patents can be valuable because of their (excessive) breadth, whereas very narrowly defined patents would tend to be less valuable.
Others point to estimates that a high percentage of granted patents may, in fact, be invalid as evidence of poor quality. The probability that a patent would be found valid in court is often used as an indicator of patent quality. More generally, legal scholars tend to define a quality patent as one adhering to the legal standards of patentability.
Patent offices tend to focus on areas where there are actionable policy “levers,” within their purview. For this reason, the United States Patent and Trademark Office (USPTO)’s Enhanced Patent Quality Initiative and the European Patent Office (EPO)’s Patent Quality Charter take a customer service-based approach to patent quality, focusing on engagement with applicants and the quality of patent examination.
Some commentators embed patent quality within the larger discussion of the design of the patent system. There are undeniably policy questions about the larger legislative framework in which the patent system functions. Patentability standards themselves, in my mind, are distinct from questions of patent quality. Subject matter eligibility, novelty, and non-obviousness standards define the structure for the patent system; patent quality relates to how the patents produced by the system compare to those standards.
In my next post, I will detail my own framework for thinking about patent quality. But I’ll end with this thought: any workable and useful definition of patent quality should correlate with clear, well-defined, and enforceable patent rights. Harkening back to my previous post, increased patent quality should reduce uncertainty in patent rights and facilitate market transactions.
Dr. Alan Marco is the Chief Economist for Ocean Tomo, a part of J.S. Held, having previously served as the Chief Economist for the USPTO. He is an economist who specializes in intellectual property and innovation. To learn more about Dr. Alan Marco, visit: https://www.oceantomo.com/team/alan-marco-phd/