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Separating patent wheat from chaff: Would the US benefit from adopting patent post-grant review?

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

Abstract

This article assesses the impact in the US of adopting a patent post-grant review (PGR) procedure similar to one provided in the America Invents Act (AIA) of 2011. We employ novel methods for matching US patents to their European counterparts to find that opposition rates are about three times higher among European Patent Office (EPO) equivalents of US litigated patents as against control-group (unlitigated) patents. Contingent on reaching a final judgment in EPO post-grant opposition, we find that about 70% of these equivalents have challenged claims that are either completely revoked or amended. Using our empirical findings to inform a series of welfare estimates, we calculate benefit-to-cost ratios that the US may expect from implementing PGR in the range of 4:1–10:1. We also discover that these large social benefits result primarily from eliminating unwarranted market power in the current stock of granted patents, and much less so from litigation cost savings per se. Our results provide evidence that the US may benefit substantially from adopting the AIA post-grant review, but only provided that costs are controlled and that administration and appeals are not allowed to become too costly.

Suggested Citation

  • Graham, Stuart J.H. & Harhoff, Dietmar, 2014. "Separating patent wheat from chaff: Would the US benefit from adopting patent post-grant review?," Research Policy, Elsevier, vol. 43(9), pages 1649-1659.
  • Handle: RePEc:eee:respol:v:43:y:2014:i:9:p:1649-1659
    DOI: 10.1016/j.respol.2014.07.002
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    References listed on IDEAS

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    1. 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 129-151, Spring.
    2. Bronwyn H. Hall & Adam B. Jaffe & Manuel Trajtenberg, 2001. "The NBER Patent Citation Data File: Lessons, Insights and Methodological Tools," NBER Working Papers 8498, National Bureau of Economic Research, Inc.
    3. Graham, Stuart J. H. & Hall, Bronwyn H. & Harhoff, Dietmar & Mowery, David C., 2002. "Post-Issue Patent "Quality Control": A Comparative Study of US Patent Re-Examinations and European Patent Oppositions," Department of Economics, Working Paper Series qt2qt097bd, Department of Economics, Institute for Business and Economic Research, UC Berkeley.
    4. Bronwyn H. Hall & Stuart Graham & Dietmar Harhoff & David C. Mowery, 2004. "Prospects for Improving U.S. Patent Quality via Postgrant Opposition," NBER Chapters,in: Innovation Policy and the Economy, Volume 4, pages 115-144 National Bureau of Economic Research, Inc.
    5. 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.
    6. Richard Gilbert & Carl Shapiro, 1990. "Optimal Patent Length and Breadth," RAND Journal of Economics, The RAND Corporation, vol. 21(1), pages 106-112, Spring.
    7. Harhoff, Dietmar & Reitzig, Markus, 2004. "Determinants of opposition against EPO patent grants--the case of biotechnology and pharmaceuticals," International Journal of Industrial Organization, Elsevier, vol. 22(4), pages 443-480, April.
    8. Lanjouw, Jean O & Schankerman, Mark, 2004. "Protecting Intellectual Property Rights: Are Small Firms Handicapped?," Journal of Law and Economics, University of Chicago Press, vol. 47(1), pages 45-74, April.
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    Citations

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    Cited by:

    1. Nagler, Markus & Sorg, Stefan, 2019. "The Disciplinary Effect of Post-Grant Review," Rationality and Competition Discussion Paper Series 155, CRC TRR 190 Rationality and Competition.
    2. Dietmar Harhoff & Georg von Graevenitz & Stefan Wagner, 2016. "Conflict Resolution, Public Goods, and Patent Thickets," Management Science, INFORMS, vol. 62(3), pages 704-721, March.
    3. repec:eee:irlaec:v:50:y:2017:i:c:p:25-35 is not listed on IDEAS
    4. Talia Bar & Brendan Costello, 2017. "Patent Validity Challenges and The America Invents Act," Working papers 2017-21, University of Connecticut, Department of Economics, revised May 2018.
    5. Gaessler, Fabian & Harhoff, Dietmar & Sorg, Stefan, 2019. "Bargaining Failure and Freedom to Operate: Re-evaluating the Effect of Patents on Cumulative Innovation," CEPR Discussion Papers 13969, C.E.P.R. Discussion Papers.
    6. repec:kap:ejlwec:v:48:y:2019:i:2:d:10.1007_s10657-019-09627-4 is not listed on IDEAS
    7. Markus Nagler & Stefan Sorg, 2019. "The disciplinary effect of post-grant review - causal evidence from European patent opposition," CESifo Working Paper Series 7599, CESifo Group Munich.

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