THE WAITING IS THE HARDEST PART: DOES LONGER PATENT PENDENCY MEAN MORE VALUABLE PATENTS?

Ellenberger, Michael P. | March 3, 2019

The United States Patent and Trademark Office (USPTO) is one of the busiest—and slowest—patent offices in the world. The average utility patent is pending for 25.3 months before issuance. For parties that require legal protections in fast-moving technological fields, such as mobile technology startup, the waiting could be detrimental. Moreover, the patent backlog problems worldwide cost the global economy over $10 billion per year. Even under such a delay, an increasing number of issued patents are threatened or invalidated in the U.S. court system. Undoubtedly, then, if patents are considered to have “quality” only if they are both (a) valid and (b) litigation-proof, the USPTO is failing. If, however, instead the consideration is broadened as to what it means for a patent to be “high quality”— using the four “patent worth considerations” of market, signal, impact, and reputational value—then the situation looks far from disastrous. This note proposes to examine the time-value dynamic of a patent and evaluate whether, in consideration of a variety of metrics, long-pending patents are more valuable. In short, are patents worth the wait? This note concludes with proposals for a more efficient Patent Office through examination of existing functional policies both internal to the USPTO and abroad.