Thursday, November 26, 2009

Simply counting numbers of patents is missing the big picture

The IAM Blog posted on a recent study by Gray/Wegner of Foley & Lardner, which study observed, among other things:

#1. Within the coming decade it may be estimated that just 150 companies will  account for 50 % of all American 
patents granted, while just the top ten  companies will soon account for 20 %  of all patents granted

#2. The Top Ten EE/IT/software companies typically  patent 1500 to 4000 or more inventions per year, an 
order of magnitude more than the biotech/pharma industries which top out at about 400 patents per year.

IPBiz: This is supposed to be surprising?

IAM (Joff Wild) didn't think so, but then went off on a tangent, as if the words Quillen/Webster were not in the vocabulary:

Essentially none of this is much of a surprise. I think everyone who takes an interest in these things realises that a relatively low number of applicants dominate the flow of traffic not only to, within and from the USPTO, but also at most major patent offices across the world. What I would like to see is a study that contrasts applications with grants; in other words what kind of conversion rates do applicants have?

LBE made the following comment to IAM on 26 Nov:

Of -- What I would like to see is a study that contrasts applications with grants; in other words what kind of conversion rates do applicants have? --, one recalls that just a few years ago Quillen and Webster brought us the patent allowance saga, in which they argued that what IAM calls a "conversion" rate had to consider the number of continuing applications involved. This done, QW came up with the 97% number as a bound (attracting much publicity), although they later fluttered down to around 85%.

This, however, is not the most important issue. In the world of chemistry, one has the concepts of "number average" and "weight average". Gray/Wegner and IAM are placing significance on "numbers" of patents, rather than on the content of the claims therein (the "weight" or technical impact) . IAM neglected to comment upon the final statement of the Gray/Wegner presentation:

--nor is any implication necessarily expected to be drawn from the data--

In the pharma area, getting a patent is just the beginning of long drawn out struggle involving tests and regulatory approvals and then an extensive marketing campaign. In the IT area, patents are more like "I had this idea after lunch." With no major concern about testing, regulatory approval, or marketing of the patented idea, it's not a big surprise that IT folks gets lot more patents than does pharma.

Contemplate claim 1 of IBM's US 20090119148: A method including:
defining, by a user, a time template including a plurality of predefined time intervals for scheduling meetings; and
applying the time template across a collaborative system.


And, think about the underlying strategy:

Of the patent grant rate business:

**What's really going in patent reform, from IPBiz [
Demise of the (anti-)Doughnut campaign: a parable of patent reform?

In patent reform, the big doughnut sellers (eg, IBM, Cisco) are complaining about the little doughnut sellers ("trolls") and are trying to implement "reform" to favor the big doughnut sellers, rather than to get rid of the doughnuts. The popular press would have the public believe that the little doughnut sellers are the only ones selling doughnuts, and that "reform" will get rid of the doughnuts. Anybody who actually advocated getting rid of the doughnuts would meet the same fate as Dr. Newsom, likely from doughnut selling lawyers. Furthermore, the position of the big doughnut sellers would do significant harm to smaller vendors, who aren't selling doughnuts at all.

**As to the Quillen/Webster story, from abstract of LBE's paper in 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.

**Of the author Justin E. Gray referenced by IAM, from the Foley website-->

Mr. Gray obtained his bachelor's degree in computer science and mathematics from the University of Wisconsin - Madison (B.S., with distinction, 2003). He focused his studies on areas such as cryptography, combinatorics, database management systems, and artificial intelligence. His law degree was conferred by Northwestern University School of Law (J.D., cum laude, 2006), where he was a staff member and symposium editor for the Northwestern Journal of Technology and Intellectual Property. While in law school he was a member of the Northwestern National Trial Team.

**UPDATE. To IAM on 30 Nov 09-->

At the same time that the IAM Blog is talking about a --a major programme of research designed to explore the role that intellectual property plays as a facilitator of both innovation and economic growth --, one has the "Manchester Manifesto" which is suggesting quite a different direction for IP. See for example:

Of -- Roger also said that industry should be there as "expert witnesses" --, the East Anglia/CRU business currently going in the UK shows how easily the device of experts/peer review can be manipulated. The "nuts and bolts" of patent law, at the end of the day, may be more of a political issue, allocating who gets what, as the "patent reform" debates in the US of the last few years have illustrated. See also


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