The patent quality matters because a patent in essence is an agreement for a “deal” bargained for between the patent owner and the government, and the quality of the patent determines how favorable the deal is for the patent owner.
A poorly drafted and prosecuted patent is worse than nothing, because it not only ends up having zero protection, but actively educates others on how to copy and infringe the invention.
A patent is not a mere “registration”, a “permit” or a “certificate” issued to the patent applicant by the government. The difference between a bargained-for agreement and a certificate is critical. If you are applying for a certificate from the government for certain accomplishment of yours, it probably matters little who applies for the certificate for you and how the certificate is issued as long as you can get the certificate. This is because a certificate is a mere seal of the accomplishment and, once issued, carries its full force of what it does. But a patent is not a certificate of invention. A patent is a bargained-for agreement between the patent applicant and the government. Accordingly, the goal of a patent applicant is to strike the most favorable deal possible, rather than simply have a piece of paper that is entitled “patent.”
No one wants to walk away with an agreement that basically gives everything to the other side and leaves himself nothing. Yet that is precisely what many companies and patent owners do when they file poorly drafted patent applications and aim to receive a quick patent without quality construction (drafting and prosecution). The result is either a poor representation of the actual invention if the patent does not described the invention properly, or a give-away of the patent applicant’s valuable intellectual property if the invention is described adequately but not claimed properly.
The problem is compounded in that frequently the patent owner can’t determine, or doesn’t have time to determine what kind of a deal he has got. (To a large extent, the person who prepared the patent is in a much better position to know the answer to that question.)
The above creates a situation in which the patent owners tend to seriously misunderstand and significantly underestimate the importance of the quality of a patent based on a superficial knowledge. As said, one of the reasons is that a patent often creates a strong illusion to let a patent owner automatically, and mistakenly, equaltes the patent to the invention.
Proper appreciation of the quality of patents thus takes an educated and a sophisticated patent owner. An ultimate test for the quality of a patent is litigation in which infringement disputes arise and are settled contentiously, often in a court through a trial. Those who have some experience or knowledge of patent litigation know that the quality of a patent is critically important. This is not only true in the sense that the quality of the underlying invention matters, but also in the sense that for a given invention, the quality of the patent determines the scope of the protection. Unfortunately, many patent owners learn the lesson the hard way – through litigation, often when it is too late.
With an understanding of the difference between an invention and a patent, it is easier to appreciate the importance of the quality of a patent. In our land-and-fence analogy, the quality of a patent matters because the patent fence must satisfy the following conditions in order to be valid and of any value:
- The patent fence must be built to meet the “construction codes” imposed by the law in order to be valid; and
- The patent fence must fit the land to confer proper scope of protection.
Simply put, because an invention is the piece of “land” while a patent is a “fence” that protects the land, one may have discovered a great piece of land but fail to protect it. You might say there is nothing new in that statement because if one does not apply for a patent, of course the invention is not going to be protected. But that is not the point that is being demonstrated here. The point here is that one may have made a great invention and further obtained a patent for it but still fail to receive proper patent protection because of the poor quality of the patent that was applied for.
To understand the above point, consider the factors that could cause a patent of inadequate quality. First, a patent may be of inadequate quality if it fails to meet the “construction codes” of the government for the “patent fence.” Such a patent may be found invalid when under attack. An invalid patent is much worse than just being worthless. An invalid patent is much worse than just a waste of money, and even worse than a waste of an invention. Having a patent that ends up being invalidated is much like spending a huge amount of money to assist your competitors to take advantage of you. This is so because an invalid patent may be an invalid legal instrument and thus fail to confer any benefit to its owner, it is nevertheless always a valid publication to render a detriment effect on its owner. The only thing an invalid patent does is to teach your competitors how to practice you invention to your disadvantage (something that wouldn’t happen had you not applied for that patent in the first place).
Second, a patent may also be of inadequate quality if the “fence” does not fit the “land” and therefore does not confer proper protection. That the patent “fence” must fit the invention “land” is very basic requirement in patent law. If the fence is too big, the government will not allow it, because the inventor is asking for more than what he has discovered and is entitled to. Even if such a fence is allowed at first, it is always subject to challenge, and can be brought down any time by someone else who can convincingly prove that the fence does not fit. If the fence is too small, it wouldn’t provide enough protection. A fence that is too small is not a problem for the government, but the owner of the patent is the one stands to lose. This is further discussed in the following section.
Furthermore, according to the patent law, which are the rules for “patent fence,” once the fence is built there are only limited ways and within a limited period of time to amend it. For instance, if the fence was too big in the first place and was challenged later, with some exceptions the patent owner may not be able to rebuild it to retrofit the invention. In such a case, if the fence is brought down, the patent owner can’t just say “all right, I’ll back up a bit and take less than what I had asked for.” Where there is no chance for renegotiation, the patent owner loses all protection of his invention.
Related readings:
Why apply for patents?
The distance from an invention to a patent
What skill set to look for in a patent attorney for procuring a strong patent?
What is the difference between a strong patent and a weak patent?
