Diamonds in the Quarry

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 judge as the referee, and the patents as the players. Can you imagine coverage of a 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 the players.

But not in the patent world.

If I had the time, I think it would be interesting to take public patent litigation cases, look at the patent claims being pressed, and then determine the quality of those claims.

I think the results would be interesting for a lot of reasons, but primarily because patent litigation, especially the so-called "troll" kind, seems to be on the rise. If that's true, I'm suspecting that it's directly related to the state of the economy---if folks can't make money the normal way, then there's always using the courts to shake down the deep pockets.

Another reason why such research might be interesting, is that the distribution of quality among a typical portfolio of hundreds of patents looks a lot 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, and the vast majority of the league being "replaceable parts."

And just like in the NBA, in the patent world, there are a few superstars, a larger pool of patents of reasonable quality, and all the rest being worthless pieces of junk.

A worthless piece of junk as a basketball player doesn't 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.

Now, any typical sports fan can spot a piece of junk player, but very few people can do the same for patents.