Consider, for example, a patent having a claim (the part of a patent document defining what is protected by the patent) that includes a particular term that could have more than one meaning. The term “index,” say, has one meaning in the context of a database and another in the context of Web page design. If the patent fails to define that term in the body of the patent document, then the patent is ambiguous and would be less clear (i.e., its legal quality would be lower) than if that claimed term were precisely defined. As another instance, a patent record indicating that an examiner considered a broad set of prior publications suggests a more thorough examination and higher quality than one indicating that little if any of these documents were considered. The PQI project seeks to link factors related to the approval of the patent with data on whether the patents were found valid in the courts, and then create an index or a set of indices that reflect the legal quality of a patent based on the presence or absence of these attributes.
These indices will provide a metric for diagnosing our patent quality problem. An index that focuses solely on the attributes of an initially filed patent application (one that has yet to be reviewed by an examiner) would allow the patent office to sort incoming patent applications on the basis of the quality of the submission. That would permit a more effective allocation of limited examiner resources by giving examiners more time to substantively review higher quality submissions under the assumption that lower quality applications could be more easily rejected and returned to applicants for revision. Another index that focuses solely on the characteristics of patent examination (ensuring that an application has been reviewed properly) could provide a meaningful tool to train new examiners on best practices and serve as a mechanism to capture, review, and address quality problems as they occur. Finally, an index that takes into account the overall quality of a granted patent will address uncertainty in the marketplace for innovations by making it easier to determine the validity of patented inventions, thus facilitating licensing and sale of patents and discouraging speculative patent litigation.
The PQI project is an ambitious undertaking that no one company or organization has the wherewithal to get right on its own. Unlike the well-known use of statistical controls on a manufacturing line to improve product quality, this assembly line—one that produces patents—is not owned by a single manufacturer, but by many private inventors and by the USPTO. It does not produce a single product, but rather its products are thousands of unique patented inventions in hundreds of different technical areas each year. So the effort to rehabilitate the patent system requires broad participation from all communities with an interest in ensuring that our system properly promotes innovation. And even then, it will take time to evolve the metric into one that is substantially complete. In the meantime, however, it is important to build a patent-quality metric as quickly and as best we can—instead of leaving the patient undiagnosed. The health of our innovation-dependent economy and the vitality of our country's competitiveness hang in the balance.
As we have been reminded recently, particularly in matters affecting our economy, an ounce of prevention is worth a pound of cure.