Microsoft also ranks higher (coming in tenth place vs. ninth on IFI’s list) on Sqoop’s list, which combines patents received by Microsoft Corporation and Microsoft Technology Licensing LLC.
The USPTO – and IFI Claims – treats subsidiaries and related companies as separate entities.
Experts note the importance of consistency in any rankings.
Mark Lemley, a professor at Stanford Law School and director of Stanford’s program in law, science, and technology, says “subsidiaries should definitely be included in the rankings. Otherwise you're counting apples and oranges.”
“Does it matter? Not in any legal sense, certainly,” Lemley adds. “But it is worth noting as part of the larger trend -- most U.S. patents now issue to foreign, not U.S., inventors. And it is interesting because Samsung is the defendant in the high-profile patent litigation with Apple.”
Jack Russo, managing partner of the Computerlaw Group, also emphasizes the need for consistency as well as transparency. “If a beauty contest or any other contest is occurring, the rules should apply equally to all of the contestants – therefore if subsidiaries do not count for one party, then subsidiaries should not count for another party.”
An effort should be made to make any cultural differences in the way patents or other IP is held by a foreign conglomerate outside the U.S. consistent with the manner in which patents using their IP are held by U.S.-based organizations, Russo adds.
“At a minimum, just like what happens when there is a close tie in rankings on things like the [New York Times Best Sellers] book lists, some footnotes should be inserted to explain the differences in the count so that readers understand what are the potential accounting differences,” Russo says.
In the bigger picture, the quality of patents being granted is more important than the quantity, Russo notes.
“…more and more patents each year seem to be ‘stockpiled’ for a variety of reasons [that] often go well beyond whether there is an important invention which needs the protection of U.S. and/or international patent laws,” Russo says. “What is being lost in all of this is the important question of quality – what is the quality of the invention or the other innovation and how is it improving the lives of everyone?”
“In summary, as framed by our Constitutional founders, the U.S. patent system should be thought of as a mechanism to provide additional incentives to those who are coming up with high-quality, novel, non-obvious, and important real-life improvements to the daily lives, health, education, safety, welfare, and well-being of the U.S. and the rest of the world populations,” Russo says. “Measured against this set of criteria, it would take years if not decades to issue a report that tells the real story of who is first, second, third, and so on or otherwise even able to make the list!”
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