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Can Post-Grant Reviews Improve Patent System Design? A Twin Study of US and European Patents

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  • Graham, Stuart J.H.
  • Harhoff, Dietmar

Abstract

This paper assesses the impact of adopting a post-grant review institution in the US patent system by comparing the “opposition careers†of European Patent Office (EPO) equivalents of litigated US patents to those of a control group of EPO patents. We demonstrate several novel methods of "twinning" US and European patents and investigate the implications of employing these different methods in our data analysis. We find that EPO equivalents of US litigated patent applications are more likely to be awarded EPO patent protection than are equivalents of unlitigated patents, and the opposition rate for EPO equivalents of US litigated patents is about three times higher than for equivalents of unlitigated patents. Patents attacked under European opposition are shown to be either revoked completely or narrowed in about 70 percent of all cases. For EPO equivalents of US litigated patents, the appeal rate against opposition outcomes is considerably higher than for control-group patents. Based on our estimates, we calculate a range of net welfare benefits that would accrue from adopting a post-grant review system. Our results provide strong evidence that the United States could benefit substantially from adopting an administrative post-grant patent review, provided that the post-grant mechanism is not too costly.

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Bibliographic Info

Paper provided by Free University of Berlin, Humboldt University of Berlin, University of Bonn, University of Mannheim, University of Munich in its series Discussion Paper Series of SFB/TR 15 Governance and the Efficiency of Economic Systems with number 38.

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Date of creation: Apr 2006
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Handle: RePEc:trf:wpaper:38

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Keywords: patent system; post-grant review; opposition; litigation;

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  1. Harhoff, Dietmar & Reitzig, Markus, 2002. "Determinants of Opposition Against EPO Patent Grants - The Case of Biotechnology and Pharmaceuticals," CEPR Discussion Papers 3645, C.E.P.R. Discussion Papers.
  2. Paul H. Jensen & Alfons Palangkaraya & Elizabeth Webster, 2005. "Patent Application Outcomes across the Trilateral Patent Offices," Melbourne Institute Working Paper Series wp2005n05, Melbourne Institute of Applied Economic and Social Research, The University of Melbourne.
  3. Mark A. Lemley & Carl Shapiro, 2005. "Probabilistic Patents," Journal of Economic Perspectives, American Economic Association, vol. 19(2), pages 75-98, Spring.
  4. Stuart J. H. Graham & Bronwyn H. Hall & Dietmar Harhoff & David C. Mowery, 2003. "Post-Issue Patent "Quality Control": A Comparative Study of US Patent Re-examinations and European Patent Oppositions," Industrial Organization 0303009, EconWPA.
  5. Cohen, Linda R. & Ishii, Jun, 2005. "Competition, Innovation and Racing for Priority at the U.S. Patent and Trademark Office," Working paper 235, Regulation2point0.
  6. Bronwyn H. Hall & Stuart J. H. Graham & Dietmar Harhoff & David C. Mowery, 2004. "Prospects for Improving U.S. Patent Quality via Post-grant Opposition," Law and Economics 0401002, EconWPA.
  7. Lanjouw, Jean O & Schankerman, Mark, 2001. "Characteristics of Patent Litigation: A Window on Competition," RAND Journal of Economics, The RAND Corporation, vol. 32(1), pages 129-51, Spring.
  8. Lanjouw, Jean O & Schankerman, Mark, 2001. "Enforcing Intellectual Property Rights," CEPR Discussion Papers 3093, C.E.P.R. Discussion Papers.
  9. Jean Olson Lanjouw & Mark Schankerman, 2001. "Enforcing Intellectual Property Rights," STICERD - Economics of Industry Papers 30, Suntory and Toyota International Centres for Economics and Related Disciplines, LSE.
  10. Jean Olson Lanjouw & Mark Schankerman, 2001. "Enforcing Intellectual Property Rights," NBER Working Papers 8656, National Bureau of Economic Research, Inc.
  11. Hall, Bronwyn H & Jaffe, Adam B & Trajtenberg, Manuel, 2001. "The NBER Patent Citations Data File: Lessons, Insights and Methodological Tools," CEPR Discussion Papers 3094, C.E.P.R. Discussion Papers.
  12. Jonathan Levin & Richard Levin, . "Patent Oppositions," Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy Working Paper Series yale_lepp-1005, Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy.
  13. Harhoff, Dietmar & Scherer, Frederic M. & Vopel, Katrin, 2003. "Citations, family size, opposition and the value of patent rights," Research Policy, Elsevier, vol. 32(8), pages 1343-1363, September.
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Cited by:
  1. Bruno van Pottelsberghe, 2009. "Economic incongruities in the European patent system," Working Papers 226, Bruegel.
  2. de Saint-Georges, Matthis & van Pottelsberghe de la Potterie, Bruno, 2013. "A quality index for patent systems," Research Policy, Elsevier, vol. 42(3), pages 704-719.
  3. Nicolas van Zeebroeck, 2009. "From patent renewals to applications survival: do portfolio management strategies play a role in patent length?," Working Papers CEB 09-028.RS, ULB -- Universite Libre de Bruxelles.
  4. Neuhäusler, Peter, 2008. "Patente in Europa und den USA : Veränderungen ab 1991 aufgezeigt an Gesamtzahlen und dem Technologiefeld des Ubiquitous Computing," Discussion Papers "Innovation Systems and Policy Analysis" 14, Fraunhofer Institute for Systems and Innovation Research (ISI).
  5. Siebert, Ralph Bernd & Graevenitz, Georg von, 2010. "Licensing in the Patent Thicket - Timing and Benefits," MPRA Paper 24007, University Library of Munich, Germany.
  6. Lei, Zhen & Wright, Brian D., 2009. "Why weak patents? Rational ignorance or pro-"customer" Tilt?," 2009 Annual Meeting, July 26-28, 2009, Milwaukee, Wisconsin 49279, Agricultural and Applied Economics Association.
  7. Bruno Van Pottelsberghe, 2010. "The Quality Factor in Patent Systems," Working Papers ECARES ECARES 2010-027, ULB -- Universite Libre de Bruxelles.
  8. Cremers, Katrin & Schliessler, Paula, 2012. "Patent litigation settlement in Germany: Why parties settle during trial," ZEW Discussion Papers 12-084, ZEW - Zentrum für Europäische Wirtschaftsforschung / Center for European Economic Research.
  9. Catherine Beaudry & Andrea Schiffauerova, 2011. "Is Canadian intellectual property leaving Canada? A study of nanotechnology patenting," The Journal of Technology Transfer, Springer, vol. 36(6), pages 665-679, December.
  10. Andreas Panagopoulos & In-Uck Park, 2008. "Patent Protection, Takeovers, and Startup Innovation: A Dynamic Approach," The Centre for Market and Public Organisation 08/201, Department of Economics, University of Bristol, UK.

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