In Pursuit of Patent Quality (and Reflections on Reification)

46 Pages Posted: 9 Oct 2015 Last revised: 19 Oct 2015

See all articles by Kenneth L. Port

Kenneth L. Port

Mitchell Hamline School of Law; William Mitchell College of Law

Lucas Hjelle

Independent

Molly Littman

affiliation not provided to SSRN

Date Written: October 8, 2015

Abstract

Patent academics and patent attorneys believe that there is a close correlation between patent quality and the excessively difficult hurdles to patent bar admission in the United States. In this piece, we demonstrate that no such correlation exists.

To become a patent attorney, a person has to possess a bachelor’s degree in very specific areas of science or engineering. It is even more exclusive than the normal STEM degrees of science, technology, engineering and math. For example, mathematics is not one of the degrees that allows the possessor to sit for the patent bar. This arbitrary selectivity is what we refer to as “reification.”

It is an age-old truism, often repeated, that these reified requirements for the patent bar are required to maintain patent quality in the United States. Patent quality is often discussed, however patent quality is never easily or satisfactorily defined. In a word, patent quality can be oversimplified to be equated with enforceability. If a patent is enforceable, it is presumptively of high quality. However, it is difficult to agree upon a universally acceptable definition of patent quality, a definition that is affected by many known and unknown variables. Defining quality is also subject to national prejudices. As such, we adopt the Organization for Economic Cooperation and Development (OECD) as an objective, nation-agnostic barometer.

To determine if reification affects quality, we compare the disparate reification levels between the US, UK, Canada, Japan, and Germany with patent quality from those countries. Using either OECD’s data or other well-articulated American definitions for quality, there appears to be no correlation between patent quality and reification standards of various nations. Highly reified countries do not have higher quality. Low reification standards do not lead to low quality. We therefore conclude that patent quality is not correlated with the current reification standards.

As such, there seems to be no objective justification for the high reification standards in the United States. These reification standards are leading to a decrease in the number of new entrants to the patent bar. This decrease will soon become a severe shortage. A severe shortage of patent attorneys will affect the ability of American inventors to protect, monetize, and commodify innovation. A decrease in innovation will have a deleterious effect on the American economy.

Unless the decline in patent attorneys caused by high reification standards is cured, America will become less competitive than its most important trading partners.

Keywords: patent, patent attorneys, PTO, patent quality, reification of patent attorneys

Suggested Citation

Port, Kenneth L. and Hjelle, Lucas and Littman, Molly, In Pursuit of Patent Quality (and Reflections on Reification) (October 8, 2015). Marquette Intellectual Property Law Review, Vol. 20, 2015. Available at SSRN: https://ssrn.com/abstract=2671473

Kenneth L. Port (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

HOME PAGE: http://mitchellhamline.edu/biographies/person/kenneth-l-port/

William Mitchell College of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

HOME PAGE: http://mitchellhamline.edu/biographies/person/kenneth-l-port/

Lucas Hjelle

Independent

No Address Available

Molly Littman

affiliation not provided to SSRN

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