By Robert Cantrell
The USPTO is on pace to issue more than 360,000 patents in FY 2025. About 1% will ever be litigated. Of this small fraction that are litigated (~1%), roughly 65–75% will ultimately be found to be at least partially invalid—especially at the PTAB—which, setting aside why this rate is so high, indicates that these were patents competitors considered important and vulnerable enough to challenge. Separately, studies estimate that only 2–5% of all patents are licensed (with some overlap in litigated cases). An unknowable number may deter infringers, but this, too, is likely a small number, probably less than 5%. Adding all this together, it is safe to say that most patents, in excess of 90%, have little if any relevance.
The reasons for patent irrelevance vary. The problem may rest solely with the invention. No one may want it. But the patent claims of many marketable inventions are also irrelevant. Sometimes this stems from basic claims drafting. The claims may include limitations that are easy to design around. Another common reason, however, in otherwise well-written claims, is that patent drafters failed to anticipate how the underlying technology in the patent claims would evolve.
Ideal State Inventions
The evolution of inventions usually trends toward an ideal state. As they evolve toward the ideal state, inventions may move outside the scope of existing claims. An ideal-state invention provides users with a solution that offers all the sought-after benefits with no drawbacks. Progress may meander, and an actual ideal state may be impossible to reach, but the trend will be toward delivering more of what is good about a solution with less of what is bad. Products become better, faster, and less expensive. The claims of an invention should anticipate this, defining both where an invention is and where it will be.
For every claimed element, inventors and their patent practitioners should consider how that element can be:
- Improved,
- Replaced by another element,
- Reconfigured, or
- Eliminated.
If any such change moves the invention closer to the ideal state, it will likely happen. The claims—or at least the specification from which future claims may be drafted—should include such embodiments.
Optimal State Inventions are best fit solutions
Now, although inventions trend toward an ideal state, commercially successful inventions usually reside at an optimal state. This solution is the best-fit solution for most users, rather than being the best, fastest, or least expensive. The latter properties may coincide with the best-fit solution if the top end of those qualities matters. But at some point, improvements become counterproductive for the majority of users. The car, for example, becomes too fast for the highways on which it operates when driven anywhere near its full potential. At this point, psychological desires for further improvement may outweigh the practical need; fast cars are cool. Regardless, the approach to staying relevant with patent claims remains the same. Engineers will still attempt to design solutions that offer all the desired benefits while minimizing associated drawbacks. Put another way, there is no reason that a too-fast car cannot be made to go too fast more fuel-efficiently. Component by component, claimable elements may be improved, replaced, reconfigured, or eliminated.
Going further, inventors and patent practitioners can explore how inventions are likely to improve when claims are being drafted. 2.0 can be imagined while defining 1.0. One of my favorite questions to ask inventors is how to invent some element of their invention—or even their entire invention—out of existence. This question goes beyond simply asking how inventors might design around those elements. Both questions are important, but design-around solutions often introduce inefficiencies, for example, the possibility of using convection when a better approach is clearly conduction. Inventing something out of existence, however, pushes inventors to think toward ideality.
Murphy’s Law of Innovation states that anything that can be done will be done. This, as a side note, is why we have nuclear warheads and were always going to have nuclear warheads. To stay relevant, patent claims must stay ahead of development curves. Therefore, if inventors can conceive a superior invention to the one they put forward in their disclosure, especially an invention that eliminates an element that may otherwise appear in the independent claims, at least some of the claims should reflect these inevitable designs. This is how claims stay relevant far into the future.
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