AmberBlog

I have had a lot of valuable discussions with people about measuring patent quality in the last few months. A number of these discussions have had people making statements along the lines: "To measure patent quality you have look at the claims, the patent wrapper, quality of the drafting, etc, and this best done by a patent attorney".

I have thought about this proposition, and come to the conclusion that it is completely true. These factors are very important, and are best done by competent patent attorneys or patent lawyers. However this is only part of the story.

Imagine buying a house. This is a big investment, particularly an existing house where you might not fully understand its history. And accordingly, and this is exactly what I did when I bought a house, you would be well advised to hire a builder or ex-builder to carefully go over the house to advise on how well it is built and how well it is likely to last. A builder is best qualified to advise on this as they are intimately aware of the intricacies of building homes.

However when I bought my house, I did not dream of asking the builder how much he thought the house was worth. And if I had done this, he probably would have refused to provide a figure, as this did not fit in with his area of professional expertise.

Instead to value our home we used a valuer. And what the valuer did was compare the overall quality of the home (in an approximate sense) to their databse of other houses in the neighbourhood where sale price data was available, and use this data to estimate the value of the house.

And both roles are very important. A builder to tell you that a house is well built - and the valuer to tell you that the house is worth buying (or keeping).

This is a key value proposition of Network Patent Analysis (NPA). NPA is not intended to replace the role of a patent attorney in reviewing the strength of individual patents. However NPA can give an objective comparison of individual patents to the other patents in the 'neighbourhood', and so provide a systematic basis for patent valuation.

As an example, consider the likely value of the Motorola patent shown in the figure below, which appears to be prior art for a number of highly ranked Apple patents.

Hence NPA can play an important role in the due diligence of patents, a role that goes beyond the more traditional roles of looking at patent validity and coverage as expressed by the claims and file wrapper of the patent. NPA is also useful as it can review up to tens of thousands of patents at a time, allowing the patent attorney to focus their valuable efforts at the most promising prospects. 

An issue that we encounter from time to time is where clients ask:

         Can Network Patent Analysis (NPA) predict claim quality?

As we all know, claims are one of the key aspects of any patent. A well drafted claim will be broad enough to provide a good degree of protection for the invention being patented, yet narrow enough to avoid the prior art. Experienced patent attorneys take great care in drafting claims, knowing that, if the patent is ever litigated, the legal teams from both sides will sweat over every word in the claims. In addition, judges will base judgements that could be worth many millions on these same words. Claim quality also gets determined when the claim is referenced to competing products – a given set of claims may precisely read onto a competing, similar product, whilst it entirely misses a second competing and similar product. For good reasons, opinions regarding infringement of a given patent claim are best given by skilled attorneys and patent lawyers.

Given the importance of the wording of patent claims, it would be a big ask for a fully objective approach like NPA to predict claim quality. And for this very reason, Ambercite is careful to avoid suggesting that we can predict claim quality.

Having said that, a patent can, in simple terms, also be considered as a public disclosure in addition to the legal monopoly as defined by the claims. And underlying this disclosure is the invention being protected. Assuming that the patent owner is using skilled patent attorneys/agents to draft its patents, a 'better' (e.g. more innovative, valuable, novel) invention should bring with it the basis for stronger claims and hence stronger legal protection.

The relationship between invention quality and legal quality can be expressed by the figure below. A higher quality invention brings with the potential for stronger claims that take advantage of the breadth of the invention. It is the role of the patent attorney to maximise the legal quality of the patent by drafting strong claims based the quality of the invention.

Figure: Two alternative definitions of patent quality

Unlike legal quality, we believe that 'invention quality' can be predicted using NPA, for one or both of two reasons:

1. Important inventions are more likely to attract imitators (or even improvements by the same applicant) and this will increase the number of forward citation connections.
2. Broad inventions (or at least claims to a broad invention) may well attract a large number of backward citations during examination.

A greater number of forward or backward citations should help to increase the influence of the patent within the patent network, and so increase its NPA ranking and predicted quality. In turn, a high quality invention brings with it the potential for high quality claims and a legally strong patent. It will remain the role of the skilled patent attorney or patent lawyer to interpret the strength of the patent claims, but NPA can help this skilled professional understand the quality of the underlying invention.

The above figure also helps to explain what happens to the 'quality' of a patented invention once the patent expires (or is abandoned). Legally, an expired patent has little value. However an expired patent publication can still be a record of a high quality invention, and this can continue to influence the field around it. Similarly, a patent only ever filed in the US can still influence its field of technology in other countries, such as during patent prosecution, litigation or research.