Can Patent Quality be Measured?

Ask any patent attorney about patent quality and you will open a big discussion. Most of the time, you will hear the phrase “I know it when I see it”, or something to that effect.

There are some overt things that give a patent ‘high quality’. These things are things like good spelling, proper grammar, clear writing, and well done figures.

There are also the legally important aspects to writing a patent application, such as properly characterizing the invention, giving support for the claims, and good patent drafting skills.

Part of the intangible ‘thing’ about patent quality is whether or not the drafter appears to really understand the invention. With some patents, you can tell that the drafter was fishing around with no clear sense of direction and appears to be filling the page with words that somehow may relate to an invention. Other patents are clear, direct, and describe the invention in a way that you ‘know’ that they knew the technology.

But that really is not the most important part of patent quality.

Each invention has its own qualities. Some are really good, and some not so good. Sometimes, the inventors are difficult and get in the way of writing a good application, and sometimes the idea itself is weak and the drafter does not know what would be patentable.

From reading a patent application, you simply cannot tell if the invention was a complete dud and the patent attorney did a tremendous job in finding something patentable. You also cannot tell if the original invention could have been the crown jewel of a licensing campaign, yet the patent attorney missed the larger picture and focused on some minor aspect.

The key to ‘high quality’ is really whether or not the drafter did the intangible things that cannot be measured.

So how do you identify patent quality? It is something ephemeral and impossible to quantify.

A good proxy for patent quality is the inventor’s opinion. Did the patent attorney/agent capture the ‘heart and soul’ of the invention? Was the invention described clearly? Was it easily understood? Did the patent reflect the broadest (reasonable) scope of the invention?

I had a patent examiner compliment me on my drafting by saying that I did a good job of presenting the invention without ‘hiding the ball’. Some attorneys believe that hiding the ball is a good strategy, but I think it is just lazy drafting.

I also had an inventor say that my patent application explained his invention in words far better than he envisioned the invention from the start. He said it was clear, direct, and more detailed and complete than he thought the invention could be explained.

I had another inventor state that I was ‘as good an engineer as I was an attorney’ when it came to understanding the invention and suggesting options for it.

When the dust settles, what makes a ‘high quality’ patent can never be known. You can only see and measure ‘poor quality’, and the absence of ‘poor quality’ is supposed to represent ‘high quality’. The truth is that there is as much art as science in drafting patent applications.