GAO Reports' Flawed Patent Quality Measure Criticized
The U.S. Government Accountability Office (GAO) has recently published two reports that raise concerns about the measurement of patent quality. The reports, 'Information on Third-Party Funding of Patent Litigation' (Dec 5, 2024) and 'Patent Office Should Strengthen Its Efforts to Address Persistent Examination and Quality Challenges' (May 7, 2025), have been criticized for adopting a fallacious quality measure.
The GAO reports use the rate at which the Patent Trial and Appeal Board (PTAB) finds adjudicated patents invalid as a measure of the quality of all patents issued by the United States Patent and Trademark Office (USPTO). This method is flawed as it does not reflect the overall quality of issued patents. Only a small percentage of patents are actually invalid, yet about half of those adjudicated are found invalid. This high rate is not due to poor USPTO examination, but rather because patent litigation often involves 'close call' cases where the outcome is uncertain.
The Priest-Klein economic theory supports this notion. It predicts that cases reaching trials are not a random sample, but a narrow selection from disputes where each side has about a 50% chance of prevailing. The authors of the GAO reports, published under the agency's collective authorship, have not named the individuals responsible for these critical errors of analysis and biased conclusions.
The GAO's use of patent invalidation rates as a quality measure is alarming and misleading. The high invalidation rates do not reflect poorly on the USPTO's examination process. Instead, they are a result of the nature of patent litigation. The author of a formal request for correction of the GAO reports has highlighted these issues, urging the GAO to reassess its methods and conclusions.
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