Secrecy and Esotericism

I believe the two main reasons why patent quality is not discussed in the press coverage of patent litigations are secrecy and esotericism. To understand why this is, it helps to understand how exactly the quality of a patent is realized.

Let's go back to the NBA analogy. How do we sports fans know which players are of the highest quality? We watch how the players perform in the crucible of the playoffs -- particularly in the Finals.

For patents, the analogy is patent litigation. The degree of a patent's quality is ultimately determined by a court during patent litigation.

So the process of analyzing patent quality involves imagining how that patent will "do" in future litigation. This includes assessing the claims of the patent, seeing if and how well they "read" upon the products/services of "targets", and whether those targets are of value.

Read the last sentence closely and you'll understand the esoteric nature of this work.

First, legal knowledge is required. That is, the person assessing the quality of a patent needs to know the legal rules explaining how to read the patent.

Second, technical expertise is required. Most utility patents concern a particular technology. Understanding the claims of the patent requires understanding the technology.

This technical requirement alone explains why courts flub patent litigations as a matter of course. Neither the judges nor their clerks typically understand the technology underlying the patents in a case, so the case plods along in darkness.

The third and final type of expertise required for assessing patent quality is business knowledge. This need is particularly poignant before the litigation is filed. The problem of assessing the value of a patent requires understanding the business landscapes to which the patent might apply, and knowledge of the value residing in those landscapes. This is the terrain of business analysts.

How many people do you know who are experts in all three of law, technology, and business? The only such person I know is me. :) I'll blog more on this later.

But just realize that there are few people who can do a superior job of assessing patent quality. Hence, esotericism.

Moreover, those people usually do this work under contracts with strict confidentiality provisions, and/or under attorney-client privilege.

In other words, secrecy pervades the patent world.

So for me to blog about patent quality in public litigation cases, I'll need to pick patents and cases I haven't worked on, and spend the time to do the work.

Now this isn't light work. The work is esoteric and difficult. When I do this kind of work, I typically need my brain to be at its sharpest.

For me, this means doing the work first thing in the morning upon waking. Compare that with this blog post that I'm writing on a Wednesday afternoon, using my more sluggish post-lunch noggin.

So the question is: Why would I want to do this kind of "heavy lifting" work and blog about it for free, when that's how I make my money? Answer is in the next post.

Comments