In part 1 of this 3 part series, I discussed “Inherent Waste,” and that it is a generally accepted cost of doing “patent business.” Inherent Waste includes patent applications that never issue and issued patents that are never used (i.e., Low Quality Patents).
In part 2 of the series, I discussed “ineffective patent strategy” as the first of two primary causes of Low Quality Patents. In this part 3 of the series, I’ll discuss the other cause: “inconsistent patent quality.”
Let’s start with some basic understandings:
1. Writing a high-quality patent application is hard and it’s very hard to do it efficiently;
2. The hardest parts of writing a high-quality patent application are:
- Understanding the invention in the backdrop of “complexity of invention” and
- Deciding how to claim it;
3. Writing a high-quality office action response is hard, and it is very hard to do it efficiently; and
4. Poor quality of preparation and/or prosecution kills patent value.
Regarding patent quality, I have two high-level guidelines: 1. Every patent should provide the client with meaningful patent protection for its invention; and 2. Give the other side as few arguments as possible regarding invalidity and noninfringement. There are a plethora of underlying guidelines, but these are supreme.
The narrower the meaningful patent protection and/or the more arguments given to the other side, the lower the patent quality. If the patent quality drops too low, the patent becomes useless.
While there are no official statistics on patent quality, it’s my estimation that about 50% of the issued patents and published patent applications that I’ve read (and it’s been thousands and thousands of them) have one or more serious flaws that compromise meaningful patent protection, validity, and/or infringement. Of those patents/applications, about half of them have such serious flaws that they are practically useless.
Given all of the above and the generally accepted fact that 70% to 80% of patents will never be used, it is also generally accepted that patent quality can be compromised to accommodate time and financial constraints of patent application preparation and/or prosecution.
Like Inherent Waste, we have proven that inconsistent patent quality is not an inevitable consequence of doing “patent business.” It can be substantially overcome.
If you work for a small company and are filing patents, ask your patent counsel what they are doing to combat inconsistent patent quality. If they don’t have an answer, consider finding new patent counsel.
*Please note that this article is not legal advice; it is not a legal opinion; nor should you rely on it as legal advice or as a legal opinion. This article merely expresses the author’s general thoughts on a topic regarding the business of patents. Nothing in this article establishes any form of an attorney client relationship between you, the reader, and the author of this article.
