Diamonds in the Quarry

Posted by: peter on: March 3, 2011

• In: patent quality
• Comment!

Patent quality seems to be a little-discussed notion. When news of a noteworthy patent litigation breaks, one rarely if ever reads an analysis of the patent claims at issue.

Patent litigation (with a cross-claim) is like a sporting contest, with the refs as the judge, and players as the patents. Can you imagine coverage of the sporting contest accompanied by no discussion whatsoever about the quality of the players? Spend 5 minutes on ESPN and you’ll notice that 90% of the discussion is about the quality of players.

But not in the patent world. In the next post, I’ll discuss why I think that is. But for now, understand what I’m planning to do.

Put simply, I’m going to take public patent litigation cases, look at the patent claims being pressed, and offer my opinion on the quality of those claims.

I believe this will be interesting because patent litigation, especially the so-called “troll” kind, seems to be on the rise. If that’s true, I’m suspecting it’s a result of the economic downturn — the notion being that if we can’t make money the normal way, then there’s always using the courts to shake down deep pockets.

Another reason this line of blogging might be interesting is that distribution of quality among a typical portfolio of hundreds of patents looks quite a bit like the distribution of talent among NBA basketball players. In the latter distribution, there is a small handful of superstars (e.g. LeBron, Kobe, etc.), a larger pool of good players, with the vast majority of the league being “replaceable parts.”

In the patent world, there are a few diamonds, a larger pool of patents of reasonable quality, with the vast majority being worthless pieces of junk (i.e, the rocks in the quarry).

A worthless piece of junk as basketball player will not even merit a “cup of coffee” in the NBA. But a worthless piece of junk patent might well make the front page of the Wall Street Journal.

The reason for the former is that any common sports fan can spot a piece of junk of a player a mile away. But very few people can do the same in the patent world. This is the next topic.