The cry to "improve patent quality" is heard anywhere patent lawyers gather and is a centerpiece of many of the political and academic establishments' major reform agendas. Indeed, although the modern patent system is entangled in policy disputes across a huge range of issues, the need to improve patent quality is essentially undisputed. This is, in a significant sense, unsurprising. Basic structural facts flag the issue quite clearly: as the amount of patenting activity has grown rapidly worldwide, the administrative apparatus of the patent system has been strained to its limits, raising urgent concerns about the viability of its basic mission of evaluating patentability. At the same time, the substantial costs of inappropriately granting large numbers of patents—uncertainty, additional litigation, and perversion of the incentives generated by patents themselves—are reasonably well understood. Despite the near-universal agreement surrounding the question of patent quality, relatively little attention has been paid to the mechanisms that support (and undermine) it. Improving patent quality is generally viewed as an administrative concern—a question of funding levels, regulatory process, bureaucratic reform, and so on. While there have been many interesting and innovative proposals for enhancing patent quality by reforming (even radically) the patent-prosecution process, less work has been done to identify the underlying mechanisms of patent quality.

What has largely been lost in this drumbeat for improved patent quality is that the modern patent system affirmatively encourages low patent quality—the incentives at work are such that we cannot reasonably expect anything other than very large numbers of low-quality patents. For this reason, virtually all of the proposed reforms directed to patent quality are doomed to fail; until we change the incentives (and change them quite significantly), the patent-quality problem will continue to grow.

In this Article, I suggest that only by understanding the mechanisms of patent quality—the incentive structure that not only discourages "good" patent behavior but also encourages "bad" patent behavior—will we make any real progress in improving the situation. Low patent quality, I argue, is not simply the problem of the U.S. Patent and Trademark Office (USPTO) and its counterparts worldwide, and no patent office can "fix" patent quality alone. Indeed, given the number of annual filings, it is hard to imagine any scenario in which enough resources could be directed toward this effort to have a meaningful impact. Instead, a serious effort to improve patent quality will need to address the reasons why patentees increasingly adopt a high-volume, low-quality patenting strategy, why litigation has become virtually the only reliable tool for determining a patent's scope and validity, and why memes such as "patent trolls" and "patent thickets" have become embedded in current legal-policy discourse.