Monday, March 27, 2006

On the debate about patent quality

IPBiz post 1400, on the subject of patent quality.

Of the comment below, I will state categorically that the assertion that the USPTO grants patents on 97% of applications, or alternatively on 50% of applications, has nothing to do with the "quality" of work at the USPTO. The issue of quality pertains to whether or not the USPTO grants patents according to the requirements imposed by statute, including novelty, nonobviousness, enablement, and written description. Depending upon "what's in" the applications, the grant rate could be anything, but the grant rate would not indicate how closely the USPTO was following the law.

Of the issue of "which" grant rate is accurate, I had noted a preference for that of Clarke over that of Quillen/Webster. This is what I wrote in JIP-1:

The patent grant rate studies of Quillen and Webster are flawed and the published grant rate numbers should not be relied upon in making arguments about patent reform. The models of Quillen and Webster erroneously assume that all continuing applications are repeated attempts to patent the invention of the parent application. The methodology of Quillen and Webster, even as modified in 2002, involves double counting of patents and artificially inflates the patent grant rate. The approximations of Clarke are more reliable than those of Quillen and Webster.

I used the nomenclature of Clarke about double-counting. The more direct statement of the problem, which I mentioned in JIP-2, is simply that Quillen and Webster subtract continuing applications from abandonments when there is no evidence that there is an antecedent abandonment for a given subtracted continuing application.

If Clarke's paper had not already been published, I might have approached the problem in a way different than Clarke, but I would have reached the conclusion that the Quillen/Webster approach, and numbers, were not accurate, just as Clarke did.

In view of eBay's use, in a Supreme Court brief in 2006, of the numbers of the first Quillen and Webster paper, it is apparent that legal writers feel free to use whatever they can find in the legal literature, even when it is wrong. On the present facts, even Quillen and Webster had dropped the 97% number four years BEFORE eBay used it in the Supreme Court brief. Those who criticize the work of others (such as the work of the USPTO in patent quality) should not come into court with "unclean hands," citing to work known to be wrong to justify a position.

As one other observation, the name of the PTO director is Jon (not John) Dudas, who is a graduate of the University of Chicago Law School, class of 1993.

Comment on an IPBiz post from March 12, 2006:

John Dudas says there is no patent quality issue? Wow. Talk about institutionalization.

Of course there is a patent quality issue. Of course there are tons of bad (obvious, non-useful, covering prior art) patents granted each week.

What else does the fact that around 75% of applications result in an eventual patent indicate, other than that the USPTO is much too eager to grant patents, regardless of quality.

John Dudas doesn't want you to look at the man behind the curtains. He doesn't want you to believe that the system is broken. He wants you to trust that the USPTO is doing a grand job.

It is not. The system is broken. Patent quality is in the toilet. That's a tough pill to swallow if you are a holder of a bad patent, if you are a patent lawyer, or if you work at the USPTO. But that's the truth.


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