patent, patent quality, patentability


Depending on whom you ask, the state of U.S. patent quality is either dismal or decent, in decline or on the upswing, in need of intervention or best left alone. Absent from the ongoing debate about the quality of U.S. patents, however, is much thoughtful discussion about what constitutes a patent’ “quality” in the first place. What features of a patent make it “good” in quality, what features make it “bad” in quality, and whose opinion matters? Surprisingly, scholars and policymakers have shown little interest in these questions. Yet their answers are critical to the direction of the patent agenda because they dictate how to measure patent quality and, consequently, how to evaluate the extent of the so-called patent quality “crisis” as well as the effectiveness of quality reforms.

The broad aim of this Article is to draw attention to the definition of patent quality as an important subject of scholarly inquiry. Its more specific aim is to call for a return to first principles and begin the process of operationalizing the meaning of patent quality. It does so by analyzing the concept using a methodology applied in the business literature of quality management. The implications of this work include a fundamentally different approach to patent quality’s meaning that is essentially the inverse of the conventional way of thinking about the concept. That is, instead of defining a good-quality patent as one that, at a minimum, satisfies the existing legal standards of patentability, the legal standards of patentability (among other things) should be adjusted and applied to reflect good patent quality. Following this new approach, I propose a formula for assessing patent quality and identify the most important variable in that formula: the quality “dimensions” along which patent quality can be said to rise and fall. Identifying these dimensions is the necessary first step in a process that ultimately aims to shift the focus of reform efforts from the limited goal of increasing the number of legally valid patents toward the more relevant goal of increasing the number of good-quality patents.

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