Patent Quality Issues Continue to Drive New Initiatives
Posted on Mon, Oct 31, 2011
The value of IP around the world is continuing to grow faster than ever. Patent applications, after taking a brief slide during the 2008 recession, resumed their growth pattern last year. The USPTO received 520,000 patent applications in 2010, up from 485,000 in 2009, and granted about 50,000 more than the previous year. Industry expert Marshall Phelps estimates that between 70 and 80 percent of the value of modern corporations is in intangible IP assets, making IP a global industry measured in trillions of dollars.
One aspect of the industry, though, continues to struggle to keep up with global growth: patent quality.
What is Patent Quality?
The concept of patent quality can be defined variously and at length. Among the more concise definitions is one from law professor R. Polk Wagner. “Patent quality is the capacity of a granted patent to meet (or exceed) the statutory standards of patentability – most importantly, to be novel, nonobvious, and clearly and sufficiently described.” In other words, patent quality is synonymous with patent validity.
Seen in this light, patent quality is crucial because it defines whether or not a patent is likely to be in conflict with the claims of another patent, and could lead to an expensive infringement case. As USPTO director David Kappos wrote this year, “a quality patent removes risks to patent holders and strengthens the entire IP system.”
Patent Quality and the USPTO
The USPTO has addressed patent quality concerns with many new plans and initiatives, but the fact remains that it is an uphill battle for any patent office. A major distraction has been the mounting backlog of patent applications, which topped out at a startling 1.2 million in 2009. To alleviate the problem, the USPTO brought on more examiners and employed new initiatives. Their efforts worked, and currently the backlog is about half its former size. This progress is admirable, but fixing the backlog is only the beginning of addressing patent quality.
In fact, even if a patent office had the luxury of operating completely free of concerns about keeping up with a backlog, the office would still be hard-pressed to do the kind of research necessary to optimize patent quality. Much of the world’s most important prior art can only be found in off-line, foreign language, and otherwise hard-to-access documents. The corps of patent examiners, even given more time and better training, couldn’t possibly be versed in every technological and scientific discipline, fluent in all languages, and able to travel all over the world. The cost of such expertise and access would be extremely limiting.
New Solutions to Increasing Patent Quality
If examiners are unable to perform the tasks necessary to approving quality patents, then a solution must be found to assist the patent offices. One forward-thinking example is the Peer to Patent program. It’s a collaboration between the USPTO and New York Law School that “seeks to assist patent offices in improving patent quality by gathering public input in a structured, productive manner.”
Operating through its website, the program allows the public to submit possible prior art for listed patents. The program represents a significant step forward for patent quality. In addition to the pilot program run in the U.S., Peer to Patent is also being tested in other locations around the world, including Australia and the U.K.
Article One has already found success using similar a crowdsourcing model to help companies dealing with the results of low quality patents. The success of our platform shows that there is a great amount of currently untapped expertise in the world, and willingness to help the cause of patent quality. In fact, many AOP Researchers say that helping spur innovation through patent quality is the driving force behind their research.
These platforms and initiatives represent a focus on attacking patent quality from a variety of angles. It is this multi-lateral approach that will be able to significantly improve the patent space and drive innovation.