Sunday, July 12, 2009

"Patent quality index"?

Alison Frankel, in a post titled IP Litigators, Meet Your PTO Nominee, David Kappos of IBM , refers to the Foley webinar including Dave Kappos and writes:

But we were most intrigued by Kappos's vision of an automated "patent quality index." As he explained it in the Foley webcast, the index would be created with data on the effectiveness, in terms of patent awards and court-determined validity, of various patent applications. Patent seekers could then run their applications through the statistically based engine to receive a numerical score judging the likely outcome of their patent attempt.

Alison concluded:

Sounds fascinating--a way to predict the outcome of future validity cases years before they're brought!

Related to patent applicants ["seekers"], IPBiz readers might recall a January 2006 post
IBM proposal to help patent examiners
which included text

#3. Automated system to evaluate quality of application

Also, IBM is working with academic researchers in an effort to create an automated system to evaluate the quality of a patent application. This would be an objective, computer-driven system that would point out when a patent application uses terms, for example, that it doesn't define.

Thus, Alison is fascinated by an idea that has been around for years.

As to outcomes of patent litigation, recall Professor Polk Wagner's Federal Circuit Predictor. The "predictor" is no longer there, but the link gives us the text:

Due to the effects of the Federal Circuit's en banc Phillips v. AHW, 415 F.3d 1303 (Fed. Cir. 2005), this tool is no longer a reliable preditor of the Federal Circuit's appraoch [sic: approach] to claim construction.

IPBiz notes the irony in an "en banc" decision being alleged to bring less clarity.

**See also

Federal Circuit Begins Announcing Panel Composition One Week Early which includes:

Thus far, Professor Wagner's predictor has been seen as a cute but ineffective tool because the appellate panel is not given with any advance notice. The Predictor Tool adds certainty, but the lack of advance notice does not allow for any real settlement negotiations.

Advance notice was given, but the tool was removed.

**Related matter. Suspension of "peer to patent."

An email circulated on 9 July 09 included the text:

This culmination of the second year is bitter sweet for us at Peer-to-Patent. While Peer-to-Patent gained governmental, national and international notoriety, the USPTO has chosen not to extend the program. We hope that further review of the Second Anniversary Report will provide proof that Citizen Experts are ready to participate in the Open Government Initiative.

To view this report in its entirety, please visit:

To view the NYLS press release, please visit:

There is also discussion within InformationWeek, Peer-to-Patent Program Stops Accepting Applications:

The effort's initial spark came from Peer-to-Patent advisory board chair Beth Noveck, who recently joined the Obama administration as federal deputy CTO for open government. President Obama's nominee for director of USPTO (David Kappos, who is currently IBM VP and assistant general counsel for intellectual property) was also an early supporter of Peer-to-Patent and directed IBM's financial and technical assistance to the Peer-to-Patent program.

"The patent system in the U.S. deserves to have a way to evaluate all of those submissions that leverages the 21st century Internet infrastructure that's available," Kappos told NPR in 2007. "The Peer-to-Patent review system is just exactly that. It's simply the Patent Office of the 21st century. Peer-to-Patent is just absolutely spot-on intended to help the patent office by leveraging the millions and millions of expert people around the world who can very easily comment on pending patent applications, saving patent office examiners a tremendous amount of time and getting better leverage out of their efforts."

**UPDATE on 26 Aug 09, to the 271Blog-->

I notice you talk about "patent quality" and refer to R. Polk Wagner and Gideon Parchomovsky, "Patent Portfolios".

Wagner's patent portfolio theory (?)

Bad cite check in U Penn Law Review

Polk Wagner, again confused on patent law?

If one starts with a misunderstanding of the problem, based on belief in an urban legend, one is not going to go far.


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