Guest Post by Shawn Miller, Professor of Practice, University of San Diego School of Law; CodeX Fellow, Stanford Law School; Creator, Stanford NPE Litigation Database

Just a week ago, I began dusting off the half-written paper drafts of two empirical research projects that have mostly sat on my shelf the past year while teaching an overload to aid my colleagues on sabbatical. Brushing up on current events at the USPTO, it is clear that neither patent policy stakeholders nor the second Trump administration waited around for this law professor’s summer break. We have seen several months of the very active Acting USPTO Director Coke Morgan Stewart’s reshaping of the Patent Trial and Appeal Board’s (“PTAB’s”) process of reviewing Inter Partes Review (“IPR”) petitions, particularly in ways that tend to favor patent owners. Additionally, within the past two weeks we have had the Judiciary Committee Hearing of John Squires, the President’s nominee to serve as his permanent USPTO Director.

It seems likely that Squires will be confirmed soon and begin to act on the priorities he outlined at his hearing, two of which just so happen to overlap the topics of the two projects I am scrambling to complete this summer: patent quality and IPR reform. With my slow writing pace and the clear indications that the “reform” the administration has in mind would actually tend to harm patent quality when and where it matters, I asked—and Professor Crouch graciously agreed—to publish this guest post.

To start, what is patent quality? Put simply, it is the likelihood that a granted patent meets all of the statutory requirements for protection. In other words, low quality patents are likely invalid. Different stakeholders naturally emphasize different aspects of patent quality; for instance patent owners might prioritize breadth sufficient to cover potential infringing products or claim sets robust enough to survive validity challenges. In my own research, I have focused on novelty and non-obviousness because granted patents lacking these traits are usually devoid of innovation, and promoting new technology is the primary objective for granting inventors exclusive rights in the first place. I qualify patent quality with “likelihood” because it makes sense to think of inventors’ rights as probabilistic and contingent on unknown or misunderstood information (e.g., prior art) that supports or casts doubt on the validity of the claimed matter down the road when a granted patent is tested during enforcement. (more…)