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Archived updates for Friday, September 16, 2005

IPO Publishes Survey Results

According to the press release, 51.3 percent of respondents to an Intellectual Property Owners Association survey rated the quality of patents issued in the U.S. as less than satisfactory or poor (47.5 percent lessthan satisfactory and 3.8 percent poor). Those rating quality more thansatisfactory or outstanding were 8.8 percent of all respondents (8.8 percentmore than satisfactory and 0 percent outstanding). The portion saying it is satisfactory was 40.0 percent.

With regard to patent application pendancy, over two-thirds of respondents said they thought the patent process would get longer, not shorter, over the next three years. And nearly three-quarters said theywould be spending more, not less, on patent litigation over the coming years.

Additional survey results:

  • Compared with quality 3 years ago, more companies thought quality is worse now than thought it is better (24.3 percent somewhat worse, 12.7 percent somewhat better and 53.3 percent the same).
  • For the next three years, more companies thought quality will get worse than thought it will improve (28.7 percent get worse, 15.0 percent improve, and 51.2 percent stay the same).
  • A majority said the patent filing and issuing process in the U.S. Patent and Trademark Office will get longer during the next three years (67.5 percent get longer, 16.3 percent get shorter, 13.8 percent stay the same).
  • 73.8 percent of companies said their resources spent on patent litigation will increase over the next three years (73.8 percent will increase, 2.5 percent will decrease, 17.5 percent will stay the same and 6.3 percent don't know).

Douglas Sorocco (Bio, Email) at the PHOSITA Blog says that he's not sure about many of the surveys findings:

First, I'm not convinced of the measure of a high quality patent. There have
been numerous ways of measuring patent quality, including later citations and
success in court. However, I believe that a high quality patent is one that
never even needs to go to court. Sure, a patent that is well-written, clear and
thorough will stand the test of litigation. However, the best patents don't
require litigation to prove their value. In fact, the best patents would scare
off potential lawsuits. So, I disagree that quality patents are those that
succeed in court.

Second, I am not convinced that the deterioration in patent quality is due to fee diversion. While this does cause USPTO resources to be limited, I think the patent drafters need to assume some responsibility for the quality of the patents. Before I took the Patent Bar, I was convinced that upon issuance, a patent was nearly indestructible. However, I have since learned that issuance has little to do with anything other than the payment of an issue fee and maintenance fees. Litigation often proves to be the true test of patentability. Every good patent should be able to survive litigation (if it comes to that). The judge or jury is the true "Examiner" of the patent. The guy (or gal) working for the USPTO is just an expensive "trial run."

I think if every patent professional drafted patents with litigation in mind, the quality of patents would improve. This would result in reduced litigation. Even so, I admit that higher quality "trial runs" would also result in reduced litigation.

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