Evidence from micro-level patent application data or gobbledygook from the depths of legal academia?

LBE got a chuckle from text at the writtendescription blog:


Prior work by Mark Lemley and Bhaven Sampat has shown that more experienced examiners grant more patents, and they have some results suggesting that this is not just due to selective retention. But I think Lemley & Sampat can’t distinguish between at least three very different stories, which are that more senior examiners grant more patents because (1) they are more out of touch with the latest scientific trends, (2) they are more captured by pro-patent interests, or (3) they just have less time to do their job as well as they would otherwise like. Frakes & Wasserman's new results seem to give us much more confidence that #3 is the correct answer.



One is dealing with a correlation "granting more patents" to "granting bad patents." And the root of evil is --they just have less time to do their job as well as they would otherwise like --

But later on one finds the text:


But they [Wasserman and Frakes] also find that when you control for the decreased time per application, experienced examiners actually grant fewer patents, which is a really interesting result. And consistent with this story of time-crunched examiners triaging their work, they find that when the time per application decreases, examiners are particularly less likely to make time-intensive obviousness rejections, and that the patents they grant fare less well on various quality metrics. They estimate that if all examiners were given as much time as those examiners with the most generous allocations, the PTO would grant nearly 20% fewer patents per year.



Hmm, the patents fare less well on patent quality metrics? And what might these be?


Consistent with the relevant patent literature, we amass for each issued patent in our sample the following metrics of value: (1) the incidence of patent renewal at both 4 and 8 years (Schankerman and Pakes, 1986), (2) the number of citations made by subsequent patents, normalized by the number of claims (Hall, Jaffe and Trajtenberg, 2005)


Paying maintenance fees is a commercial decision made after a few years, and is not about the "quality" of the invention. An invention can be "not valuable" to an original inventor and "quite valuable" in the hands of another. Ask Xerox about this. How many artists lived in poverty, with the "quality" of their work "discovered" after their death? How long did it take for people to discover the value of inventions of Chester Carlson or Reginald Fessenden?

It's sad that a paper in the year 2014 would be talking about patent citation as a useful metric. Even Lemley gave up on this. This nonsense was debunked years ago:

Edlyn S. Simmons and Nancy Lambert. "Patent Statistics: Comparing Grapes and Watermelons" In Recent Advances in Chemical Information, Proceedings of the 1991 Montreux International Chemical Information Conference & Exhibition, H. Collier, Ed, (Royal Society of Chemistry, Cambridge; CRC Press) pp 33-78 (1992).

Simmons, Edlyn S.; Lambert, Nancy. "Comparing grapes and watermelons." ChemTech 23 (6), 1993, p. 51-59

See the IPBiz post
The citations found in patents: do references cited by the applicant matter?

In their publication The Decline and Fall of Gobbledygook, the Canadian Bar Association agrees, “The term ‘legalese’ refers to a style of writing used by lawyers that is incomprehensible to ordinary readers.” from a post by Kelly Laycock.
The logic and style of the arguments about patent examiners is indeed incomprehensible.

Perhaps "patenthawk" should include law review articles, in addition to court decisions, within his scope; from a recent post on Bristol-Myers Squibb v. Teva:


What was remarkable was the inane confusion at the court. Judges Dyk and Wallach stated that "post-invention evidence" is rightly not allowed in considering obviousness. As Judge Newman observed: "Precedent is clear that the information and comparative data presented as evidence of nonobviousness need not have existed before the patent application was filed," noting the secondary consideration of commercial success, and citing several instances where evidence of unexpected results found later were considered relevant to obviousness. The CAFC continues to be an inexcusably pathetic excuse for a patent court: creating self-contradictory precedent and thereby failing to provide guidelines that the patent office and patent community may reasonably rely upon.



And, let's not forget US Patent 6175824 titled Method and apparatus for choosing a stock portfolio, based on patent indicators, to Breitzman and Narin inventors, assigned to CHI Research, with abstract


A portfolio selector technique is described for selecting publicly traded companies to include in a stock market portfolio. The technique is based on a technology score derived from the patent indicators of a set of technology companies with significant patent portfolios. Typical patent indicators may include citation indicators that measure the impact of patented technology on later technology, Technology Cycle Time that measures the speed of innovation of companies, and science linkage that measures leading edge tendencies of companies. Patent indicators measure the effect of quality technology on the company's future performance. The selector technique creates a scoring equation that weights each indicator such that the companies can be scored and ranked based on a combination of patent indicators. The score is then used to select the top ranked companies for inclusion in a stock portfolio. After a fixed period of time, as new patents are issued, the scores are recomputed such that the companies can be re-ranked and the portfolio adjusted to include new companies with higher scores and to eliminate companies in the current portfolio which have dropped in score. A portfolio of the top 10-25 companies using this method and a relatively simple scoring equation has been shown to greatly exceed the S&P 500 and other indexes in price gain over a ten year period.


There is a citation to --Bronwyn, H.H., Jaffe, A. and Trajtenberg, M. "Market Value and Patent Citations: A First Look" (Apr. 1998. Paper prepared for the Conference on Intagibles and Capital Markets, New York University, May 15-16, 1998, pp. 1-34). . -- and to -- Breitzman, A., and Narin, F. "A Case for Patent Citation Analysis in Litigation" (The Law Works, Mar. 1996, vol. 3, No. 3, pp. 10-11, pp. 26-27). --

This patent has been cited in 89 patents, most recently in US 8,818,996, titled Method and system for probabilistically quantifying and visualizing relevance between two or more citationally or contextually related data objects, assigned to PatentRatings, LLC.