Patent Quality: A Critique of the State of the Discussion

Abstract

AbstractDespite decades of research and debate, the narrative that low-quality patents stifle innovation remains fraught with controversy. It is called into question because the term “patent quality” seems to be a potential misnomer, and reforms to improve patent quality are ineffective. The purpose of this study is to offer a comparative critique of the debate regarding patent quality in the European Union and the United States. It investigates five factors relating to the history of this debate, contested definitions, measurements of quality, proposals that are not implemented, and reforms that are implemented. The main contribution of this paper is to review how the debate has been constructed, indicating that certain arguments seem to talk past each other and consensus is hard to reach, that measurements are flawed, and that proposals and reforms seeking improvement seem to be treating the symptoms but not the disease. The study argues that the debate encounters a conceptual predicament characterized by substantively different conceptions of patent quality, which are influenced by differing normative expectations and assessments of patent systems. It transforms a potentially useful analytical concept into a rabbit hole. Any attempts to break the current impasse must begin with an appreciation of the different senses in which patent quality is used and an assessment of the legitimacy of their underlying normative frameworks.