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Rational Ignorance at the Patent Office

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  • Lemley, Mark

Abstract

It is common to assert that the Patent and Trademark Office does a bad job of examining patents, and that it should spend more time and money weeding out bad patents. In this article, Professor Lemley challenges that conventional wisdom. Using available data regarding the cost and incidence of patent prosecution, litigation, licensing and other uses of patents, he demonstrates that strengthening the examination process is not cost effective. The core insight is that very few patents are actually litigated or licensed; most simply sit on a shelf unused, or are used only for noncontroversial purposes like financing. Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante. In economic terms, the patent office is "rationally ignorant" of the objective validity of the patents it issues.

Suggested Citation

  • Lemley, Mark, 2000. "Rational Ignorance at the Patent Office," Berkeley Olin Program in Law & Economics, Working Paper Series qt1tc166q2, Berkeley Olin Program in Law & Economics.
    • Handle: RePEc:cdl:oplwec:qt1tc166q2
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    Cited by:

    1. Bruno Pottelsberghe de la Potterie & Nicolas Zeebroeck, 2008. "A brief history of space and time: The scope-year index as a patent value indicator based on families and renewals," Scientometrics, Springer;Akadémiai Kiadó, vol. 75(2), pages 319-338, May.
    2. Benslimane, Ismaël & Crosetto, Paolo & Magni-Berton, Raul & Varaine, Simon, 2023. "Intellectual property reform in the laboratory," Journal of Economic Behavior & Organization, Elsevier, vol. 206(C), pages 204-221.
    3. Stefan Lachenmaier, 2005. "Identification of Available and Desirable Indicators for Patent Systems, Patenting Processes and Patent Rights Research Project for the German Patent and Trademark Office," ifo Forschungsberichte, ifo Institute - Leibniz Institute for Economic Research at the University of Munich, number 25.
    4. Pierre Volle & Caroline Lancelot Miltgen, 2005. "Préoccupation des clients pour le respect de la vie privée et réponse à une sollicitation portant sur des données personnelles," Post-Print halshs-00164835, HAL.
    5. Paul H. Jensen & Elizabeth Webster, 2004. "Factors Affecting the Power of Patent Rights," Melbourne Institute Working Paper Series wp2004n31, Melbourne Institute of Applied Economic and Social Research, The University of Melbourne.
    6. Hoenen, Sebastian & Kolympiris, Christos & Schoenmakers, Wilfred & Kalaitzandonakes, Nicholas, 2014. "The diminishing signaling value of patents between early rounds of venture capital financing," Research Policy, Elsevier, vol. 43(6), pages 956-989.
    7. Gaetan de Rassenfosse & Bruno van Pottelsberghe de la Potterie, 2013. "The Role Of Fees In Patent Systems: Theory And Evidence," Journal of Economic Surveys, Wiley Blackwell, vol. 27(4), pages 696-716, September.
    8. Elise Petit & Bruno Van Pottelsberghe & Lluís Gimeno Fabra, 2021. "Are Patent Offices Substitutes?," Working Papers ECARES 2021-18, ULB -- Universite Libre de Bruxelles.
    9. deGrazia, Charles A.W. & Pairolero, Nicholas A. & Teodorescu, Mike H.M., 2021. "Examination incentives, learning, and patent office outcomes: The use of examiner’s amendments at the USPTO," Research Policy, Elsevier, vol. 50(10).
    10. Bekkers, Rudi & Martinelli, Arianna & Tamagni, Federico, 2020. "The impact of including standards-related documentation in patent prior art: Evidence from an EPO policy change," Research Policy, Elsevier, vol. 49(7).
    11. Mukund Chari & H. Kevin Steensma & Charles Connaughton, 2020. "Previous and Prospective Career Mobility, Client Capture, and Compromised Professional Judgment: The Withholding of Known Relevant Prior Art by Patent Lawyers on Behalf of Their Clients," Organization Science, INFORMS, vol. 31(2), pages 489-507, March.
    12. Burke, Paul F. & Reitzig, Markus, 2007. "Measuring patent assessment quality--Analyzing the degree and kind of (in)consistency in patent offices' decision making," Research Policy, Elsevier, vol. 36(9), pages 1404-1430, November.
    13. Power Jane & Power Bernadette & Ryan Geraldine, 2022. "Determinants of equity financing: a demand-side analysis of Irish indigenous technology-based firms," The Irish Journal of Management, Sciendo, vol. 41(1), pages 52-68, July.
    14. Reitzig, Markus & Henkel, Joachim & Heath, Christopher, 2007. "On sharks, trolls, and their patent prey--Unrealistic damage awards and firms' strategies of "being infringed"," Research Policy, Elsevier, vol. 36(1), pages 134-154, February.
    15. Kim, Yee Kyoung & Oh, Jun Byoung, 2017. "Examination workloads, grant decision bias and examination quality of patent office," Research Policy, Elsevier, vol. 46(5), pages 1005-1019.
    16. Pavlova, Elitsa & Signore, Simone, 2019. "The European venture capital landscape: an EIF perspective. Volume V: The economic impact of VC investments supported by the EIF," EIF Working Paper Series 2019/55, European Investment Fund (EIF).
    17. Davit Khachatryan & Brigitte Muehlmann, 2020. "Measuring the drafting alignment of patent documents using text mining," PLOS ONE, Public Library of Science, vol. 15(7), pages 1-20, July.
    18. Caroline Lancelot Miltgen, 2011. "Vie privée et marketing," Post-Print hal-01117023, HAL.

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