Thursday, June 24, 2010

Are "patent quality" studies real, or merely voodoo science?

One could almost hear that famous line Now there you go again directed to Joff Wild at IAM as to the text about findings from a IAM/Thomson Reuters benchmarking survey that show issued US patents are thought to be of lower quality than those granted by the EPO and the JPO,

"Back in the day" one recalls the series of articles by Quillen and Webster making similar assertions. Those assertions, however, were based on bad math and bad legal analysis. So now they get re-cycled? Is this selling magazines or legitimate analysis? There was recently a distinct IAM post suggesting that only 5% of the entire universe of USPTO patents are of very high quality, but when the study author Rahul Jindal was queried on methodology, the cupboard was bare.

Also within the IAM post:

Other points of note include:

• The overall allowance rate at the USPTO has gone up by three percentage points over recent months.

• There are record numbers of US patents being issued, but the number of rejections is also at an all-time high.

• The rate of interviews between examiners and applicants has increased by 60% since the beginning of 2010.

Earlier IAM post linked to Kappos interview post:

What else could the USPTO Director have said?

IPBiz post relevant to recent patent quality assertions at IAM:

The illusory concept of a "very high quality patent"
relating to
Micron sold high quality patents to its NPE buyer; there was relatively little junk involved

Of Quillen and Webster:

from 4 CHI.-KENT J. INTELL. PROP. 108:

In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy
of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States
Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including
that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that
suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically
, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.

Note also:

In the
present situation pertaining to patent grant rates, the impact of the first paper by Quillen and Webster,
which asserted a 97% patent grant rate, extended later in time than the second paper by Quillen and
Webster which withdrew the 97% patent grant rate and posited (among other numbers) an 85% patent grant
rate. Thus, the Harvard Law Review15and the chief patent counsel of Intel16 referred to the conclusions of
the first Quillen and Webster paper in the year 2003, after the conclusions had been modified in 2002.17

See separately 4 CHI.-KENT J. INTELL. PROP. 186

John R. Allison and Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987,
at footnote 139 of QWII: "adjusting assumptions from previous study to correct a probable flaw, but still
producing an estimated allowance rate much higher than reported, and higher than in Japan and Germany."


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