Monday, August 23, 2010

Did the lack of software savvy patent attorneys cause a decline in patent quality?

The abstract for a paper by Clifford, Field and Cavicchi titled A Statistical Analysis of the Patent Bar: Where are the Software-Savvy Patent Attorneys? states:

Among the many factors that impact the declining quality of U.S. patents is the increasing disconnect between the technological education patent bar members have and the fields in which patents are being written. Based on an empirical study, the authors show that too few patent attorneys and agents have relevant experience in the most often patented areas today, such as computer science. An examination of the qualification practices of the U.S. Patent and Trademark Office (“PTO”) suggests that an institutional bias exists within the PTO that prevents software-savvy individuals from registering with the Office. The paper concludes with suggestions of how the identified problems can be corrected.

Footnote 2 purports to support the assertion of "declining quality of US patents":

See, e.g., Terry Carter, A Patent on Problems, A.B.A. J. (forthcoming Mar.
2010), available at
_on_problems (“[T]he PTO has become a burial ground for potential.”);
Patently Ridiculous, N.Y. TIMES, Mar. 22, 2006, at A24, available at
http://www (describing a patent
issued to protect a peanut butter and jelly sandwich and bemoaning the staffing problems at the PTO).

Note also footnote 6. In view of the fact that the very issue of "patent quality" has been debated, one finds
it interesting that the authors rely on an article in the New York Times on the long-ago eliminated "peanut butter and
jelly sandwich" patent to make their argument.

For a different view, see for example PATENT GRANT RATES AT THE UNITED STATES PATENT AND
, 4 CHI.-KENT J. INTELL. PROP. 108 (2004)

There are 3 factors identified by 2010 authors for the "declining quality", the first of which is inability to find prior art.
Yes, peer-to-patent shows up in footnote 5.

The third factor identified by the authors is actually the focus of the paper:

The third causative factor, and the primary
topic of this paper, is the increasingly inappropriate technical
credentials held by the parties responsible for drafting the vast
majority of patents: the patent attorney or agent (collectively
referred to as the “patent bar”).

The conclusion:

A failure to respond to the increasing
technological disconnect between the patent bar and the
technology underlying modern patents, however, will have an
overwhelming negative impact. Without change, the number of
inappropriate patents granted will continue to grow while novel
inventions will be lost in the noise of a nonfunctional system.

Should people with a BA/BS in computer sciences be allowed to sit for
the patent bar? Sure. Did the authors make a case for a large
fraction of inappropriate patents granted? No. Did the authors
prove that having bachelors level computer science people will
have a big impact? No.

**Actual citation for the 2010 article:
Clifford, Ralph D., Field, Thomas G. and Cavicchi, Jon R., A Statistical Analysis of the Patent Bar: Where are the Software-Savvy Patent Attorneys? (April 30, 2010). North Carolina Journal of Law & Technology, Vol. 11, p. 223, 2010. Available at SSRN:


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