When Biopharma Meets Software: Bioinformatics at the Patent Office

Scholars have spilled much ink questioning patent quality. Complaints encompass concern about incoming applications, examination by the U.S. Patent and Trademark Office (“USPTO”), and the USPTO’s ultimate output. The literature and some empirical data also suggest, however, that applications, examination, and output may differ considerably based on technology. Most notably, although definitions of patent quality are contested, quality in the biopharmaceutical industry is often considered substantially higher than that in information and communications technology (ICT) industries. This Article presents the first empirical examination of what happens when the two fields are combined. Specifically, it analyzes the creation and early history of a USPTO examination art unit (AU 1631) that reviews interdisciplinary inventions at the intersection of the biological and information sciences. We explore private value and quality metrics in an early cohort of incoming applications assigned to AU 1631, comparing the applications’ performance on these metrics to a group of applications assigned to a related art unit for more traditional software. We then explore the marginal value of the examination process by comparing examination in AU 1631 with that of a matched set of applications assigned to the traditional software art unit. Our results show that, on almost all conventional measures of patent value and quality, incoming bioinformatics applications were substantially