Over-broad Patents Are No Longer A Good Thing
It used to be that “broad” patents were the best things for litigation. That is no longer the case.
A patent drafting theory from 10 years ago was to draft a patent with the loosest language possible and go for claims that are nebulous. This drafting theory results in extremely broad descriptions of an invention with lots of disclaimers and alternatives so that the judge and jury can apply the overbroad patent to anybody’s product.
In other words, the overly broad patent is *designed for litigation* because it is so nebulous and noncommittal that it *must* be litigated to determine what it means.
This drafting technique has been in vogue for several years, and is often found in patent attorneys who have successfully litigated patents in the past. The more noncommittal and fluffy the patent is, the more opportunity they have to argue what it really means when in court.
They want to argue what it means because the patent has a 20 year life and litigation often occurs a decade or more after the patent was drafted. By that time, the technology and marketplace has changed significantly and their ability to reinterpret the nebulous patent can result in huge paydays for the attorneys (and their clients).
This is the heart of the derisive “patent troll” moniker that is thrown about.
Fast forward to today, and this type of patent is much, much harder to assert. In fact, rather than becoming the weapon of choice, they are basically useless.
Inter Partes Review is a relatively low cost procedure for invalidating patents, and IPR is really coming into vogue. The last statistic I had heard was that 70% of the patents under IPR have been at least partially invalidated. There are specialized insurance programs that will initiate and pay for IPR if a patent is asserted against you, and several big players have subscribed to these programs. (These polices are surprisingly affordable for small companies, too.)
There has also been a crackdown on overly broad patents by the courts. Many decisions in the past few years have gone after people who have asserted overbroad patents and have severely weakened these patents as well as patents in general.
What is the solution?
Patents *for really good ideas* are still valuable and always will be. The ease with which a person can digest and understand the patent is a good barometer of patent quality.
An easy to understand patent is easy to examine. This means that the Examiner can do a good search, find the relevant prior art, and make a good judgement as to whether or not the invention is deserving of a patent. This saves both time and money, but more importantly, results in a patent that is difficult to challenge using Inter Partes Review.
An easy to understand patent is easy to license or sell. If an infringer or potential buyer is presented with an easy-to-understand patent, they don’t need experts to digest the patent and render opinions. They can tell right away whether the patent is important or not, and when the patent is important, a deal can get done quickly.