"Patent quality" is the euphemism for stating that the patent office doesn't do its job vetting patents for prior art; hence, the regular issuance of junk patents, which, according to in-house corporate patent counsel, are despoiling corporations of their tax-subsidized infringement profits. Never mind the infringement, what are we going to do about junk patents, these corporate crusaders cry.

Mundane proposed remedies include post-grant opposition and, nipping the supposed problem in the bud, allowing external feeding of an examiner with prior art. David Simon, chief patent counsel for Intel, bandied these ideas before the Senate on Monday.

The desirability of ex-parte prior art feeding to examiners assumes that either: 1) examiners lack sufficient time to perform their examination duties, and/or 2) examiners are incompetent at prior art search. Arguing endemic examiner incompetence is a non-starter, so let's consider the time pressure issue. Before jumping to conclusions, how about first surveying examiners to find out whether they feel that they have enough time to search the prior art and perform a decent examination. If not, how about giving examiners enough time. The issue of patent quality thus becomes an issue of sufficiently funding the patent office, and provides no basis of justification for reform otherwise in this regard.

Aside from desirability, David Simon's suggestions with regard to ex-parte prosecution prior art interference are sophistic and ill-considered logistically, begging numerous questions of how to make such a system workable. Savvy patent applicants don't have their applications published anyway.

As a professional prior art searcher and pro-se prosecutor, my experience with patent validity vis-à-vis prior art runs the lifecycle gamut. My motivation in my own patentability searches is not to waste my time and money getting a patent that is not litigation quality. Admittedly, my own patentability searches exceed both other prosecutors' and the examiners' norms. Most often in prosecution I have to answer for the prior art that I cited, mostly resulting from examiners reading more into the prior art than is there. Are my patents litigation quality, fit to withstand the kind of searches I myself conduct for litigations? Frankly, I don't know. My five-hour patentability search is at a different scale than a 50-hour "death-march" litigation search.

It is not feasible to have a statutory requirement for a patentability search. That said, the simple fact is that, as the root of the problem, patentability searches are regularly skirted by attorneys as a client-pleaser.

Step back and question the assertion that invalid patent grants are nowadays anything more than an exceptional occurrence. Most of my professional searches are for litigations and conflicts, assignments offering 10-50 hours or more of search; certainly enough to smell smoke, and at least sense whether there may be a fire of invalidity. With well over 200 patent searches in a diverse set of technologies under my belt, my sense is that the patent office was particularly slack in the mid-1990s, but that patent quality with regard to invalidity has gone up noticeably since, especially in the past five years, corresponding with the rise of the Internet as information repository. My job as a patent-killer is getting tougher, at the same time offering me, and examiners, better tools. Overall, I'd grade the patent office 'B-' in its current validity efforts - as the old cliché goes, good enough for government work.

My opinion is that filling the patent office coffers, a first-to-file system, and allowing prior art up to the priority date would do wonders for improving patent quality with regard to validity.

Next: post-grant opposition.