A Two Filter System

When most people consider patent quality, they focus on examination “filter” that the USPTO provides. This misses what I like to call the “First Filter”, that is the work that the applicant does (or should have done) prior to filing the patent application. The first filter should begin when an invention is made – the inventor is responsible to determine whether the invention is novel. And, of course, the inventor is in the best possible position to determine exactly that because presumably they are one skilled in the art and they have some knowledge of the prior art. The first filter continues through the patent review committee where senior R&D folks review the proposed submission to determine whether it merits a patent application. Then, it’s on to the lawyers to do a patent search and a final determination of whether to file.

Of course, this first filter will only perform its function if there are appropriate economic incentives in place to motivate the individuals to create a quality patent application. If the cost for filing a marginal patent application is so low as to be irrelevant to the filing decision, then the first filter is removed for practical purposes. The inventor is motivated to file every patent application by his bonus structure; the senior R&D folks don’t have a cost to balance the benefit of filing the application; the patent attorneys are motivated to file another case because that’s how they make money. The result is the first, and I believe the most important filter leaks like a sieve, or it seems in recent years, it is entirely missing.