Patents are often lauded for bringing economic prosperity and continuous innovation. Nevertheless, this positive impact has been questioned by some academics (eg, Lemley, Shapiroand Cohen), who warn about patents and the litigation resulting from enforcing them being (mis)used to extractexcessive royalty fees from users of the technology, to thedetriment of innovation. In particular, these academicssee a problem with alleged infringers being forced to paya licence for a weak patent.
On the other hand, analysing over 45,000 patent applications filed by US start-ups with the US Patent and Trademark Office (USPTO), Mensa et al concluded that patent approvals help start-ups to “create jobs, grow their sales, innovate, and eventually succeed”. This is not a trivial issue, as start-ups and small and medium sized enterprises (SMEs) are the engine (99% of allbusinesses) of the European Union. In general, patent sare indispensable for many (if not most) companies to obtain a return on investment. What is often left aside in the discussion is that patenting is by its naturea risky business, as one needs to invest upfront (for drafting and filing a patent application) and it is entirely possible that no patent will be granted due to prior art (if the invention is already in the public domain). By filing a patent application, the applicant automatically permits the disclosure of its intellectual property to thepublic after 18 months, thus giving up the possibility of protecting the invention as a trade secret, withoutknowing whether he or she will ultimately obtain patent protection. Even if a patent is granted, its scope may not provide sufficient coverage either to exclude competitors or to gain licensing income. Still, companies often choose to file patent applications for their inventions (often the result of large investments in R&D), as thebenefits – if a patent is obtained with the right scope –usually outweigh the risks.
Indeed, some consider patents to be the pillar of our economy. They encourage inventors to share the results oftheir R&D investments more openly (since they hope for later protection and do not need to rely on a non-disclosure agreement) in exchange for the possibility of obtainingfair remuneration for their contribution to innovation.High-quality patents and examiners.
In general, there is a common understanding that weak patents are not beneficial to the market since a patent conveys a (temporary) monopoly right which has an impact in a (social) market economy. Therefore, the aim should be to deliver, or at least maintain, only strong or high-quality patents. However, the meaning of‘quality’ lies in the eye of the beholder. Companies may identify different elements to determine the quality or the strength of their patents, depending on their own business model. Bearing this in mind, some element sclosely related to quality include the following.
Infringement:
Ideally, patents should cover the product that the company is planning to manufacture (in order to exclude others from the patented solution and thus gain acompetitive advantage) or even other parties’ products (for which it may obtain licensing fees). However,product coverage is a dynamic parameter; for instance, the updated version of a product may no longer becovered by the company’s patent, which may cause the patent to lose value in the company’s eyes. For this reason, some argue that a high-quality patent should enjoy broad coverage in the patent claims, which definethe matter for which protection is sought. This requires a risk-benefit analysis on the part of the applicant. On the positive side, the broader the claim, the more products may infringe it (and the more potential licensees the patent holder may find). On the other hand, a broader claim can make it more difficult to map the patent with a specific product before court. It also increases the chances that the alleged infringer will find prior artagainst the patent. Invention quality
If the invention provides (in the perception of the market) significant improvements over known solutions, it is more likely that it will be used or desired. Consequently, a patent covering this solution will be
more valuable.
