Thursday, October 07, 2010

The concept of patent quality as a hunt for unicorns

A headline from the Hollywood Reporter about a Forbes list runs

Lady Gaga "more powerful" than Nancy Pelosi: Forbes

This assertion is based on relative positions on the list, with Lady Gaga coming in at 7 and Pelosi at 11. The Hollywood Reporter notes that Pelosi would be in line for the presidency after Vice President Joe Biden. The Reporter does not note that no House Speaker has ever ascended to the Presidency.

A definition of power is the ability to cause others to do something they would not otherwise do. One suspects Pelosi does this all the time, but Lady Gaga, or Madonna, or Sarah Jessica Parker? Katie Couric, who plagiarized a story about getting her first library card, is on the list.

People love to read lists, but was this a list about power? Or was this more of a name recognition game? Was this something other than what it seemed to be?

In the patent reform business, the "reformers" of a few years ago were talking about a high patent grant rate. Mark Lemley cited Cecil Quillen early on in the Northwestern Law Review article on rational ignorance. There was some kind of background feeling that the quality of work done at the patent office could be measured by patent grant rate. Then the patent office dropped the grant rate below 50%, but people still talk about low quality patents. "Quality" isn't measured by the grant rate, but rather by how the claims of granted patents stack up against the prior art (and also by how the claims of not granted applications stack up).

Assertions of power and of quality are great, but one has to have the right metric to make them more than tabloid reading material.


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