Patent Quantity and Quality Issues Up for Debate

A recent article appearing in the June issue of Les Nouvelles, a leading technology journal of the Licensing Executives Society (LES ), addressed several issues relating to patent quantity and quality that some believe plague the effectiveness of the United States Patent and Trademark Office (US PTO ). In the article titled “What is Patent Quality? A Merchant Banc’s Perspective” authors John Malackowski and Jonathan Barney analyze some recent trends relating to patent filing and theorize that patent application quantity may not be as exorbitant and patent application quality may not be as lacking as some might think when compared to historical data.

Research indicates that from 2003-2007, U.S. patent filing rates have increased annually at an average of 6.4 percent. Partial numbers from the first half of 2007 show a filing rate increase of 7.1 percent. While at first glance, the numbers may seem high, when compared to historical averages from the last decade (1998-2007), the average annual growth rate of patent applications filed has actually slowed. The average growth rate over the past 10 years is 7.9 percent, noticeably higher than the recent 5-year averages. Looking back even further, the average annual growth rate from the past 20 years (1988- 2007) stands at 6.7 percent, suggesting recent filing rates are increasing at approximately the same pace as they have been for the last two decades. Taking these figures into account lightens some of the criticism arguing that the USPTO has seen a recent onslaught of patent applications, thus affecting the review process.

Additionally, Malackowski and Barney argue that utility patents issued in 2007 show significantly more prior art than those filed a mere 5 years ago. According to data, there has been a 41 percent increase in prior art citations in U.S. patent documents. Although this data does not prove that searches have been more thorough or necessarily of a higher quality, the authors believe it makes a fair argument that patent searches have not floundered over the past several years as some critics may suggest.

“The USPTO and patent quality are sometimes lightning rods for critics,” said James Boyle, Boyle Fredrickson attorney and shareholder. “Although it is a more involved process to secure patents than it has been in the past, by making appropriate use of available tools and communication channels, I am confident that properly prepared documents and applications will be treated fairly under the current patent system. We just need to be mindful that applications may take a little longer to navigate through the process.”