Some 100 patent lawsuits reach the courtroom every year and around 40 percent of them result in patents being invalidated. Not only do these cases drain hundreds of millions of dollars from the economy, but they cost the litigants quite a bit, too--more than a million dollars a pop, on average.
Needless to say, most innovators--save for, maybe, patent trolls--would like to avoid becoming a data point for those statistics. One way to do that is by making your patent application as strong as possible.
At one time, innovators could be confident they had a strong patent if the U.S. Patent and Trademark Office approved it. While USPTO approval is still a strong endorsement of a patent, with patent approval times averaging more than 32 months and an application backlog of 750,000, the quality of patent review at the office has slipped in recent years.
"With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?" ragged one blogger.
According to federal law, to qualify for a patent an invention should be novel, non-obvious and have utility. In addition, the patent application should disclose enough detail to allow a person skilled in the applicant's field to build the invention.
Determining if an invention is novel and non-obvious is done through what's called "prior art." Prior art is documentation that the claims in a patent application were disclosed prior to its filing.
Although a survey of prior art is essential for creating a strong patent. Not only does it ensure that the claims in a patent are indeed novel and non-obvious, but it can help inventors remove ambiguity from their claims. Vaguely worded claims that are too abstract and broad in scope are lightening rods for litigators.
"Obvious patents, another type of low-quality patent, are a problem because large numbers of obvious patents make clearance difficult and costly, leading indirectly to litigation," wrote James Bessen and Michael James Meur in Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Patent, published in 2008 by Princeton University Press.
"Patents that are of low quality because they are vaguely worded, overly abstract, of uncertain scope, or that contain strategically hidden claims can also directly induce litigation," the authors added.
By and large, constructing claims narrowly creates stronger patents. They can help insulate a patent from litigation and prevent it from stepping on existing patents or what's already in the public domain.
Litigation can be a daunting prospect for an inventor. As academics Bronwyn H. Hall, Stuart J. H. Graham, Dietmar Harhoff, and David C. Mowery observed in their journal article entitled Prospects for Improving U.S. Patent Quality via Post-grant Opposition:
"Uncertainty about the validity of a patent has several potential costs: such uncertainty may cause the patent holder to under invest in the technology, it could reduce investment by potential competitors in competing technical advances, and it may lead to costly litigation after both the holder and potential competitors have sunk sizable investments."
Nevertheless, with diligence and attention to detail, the uncertainty cast on the patent process by litigation, although never eliminated, can be ameliorated.