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How many patents are truly valid? Extent, causes, and remedies for latent patent invalidity

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  • Joachim Henkel

    (Technical University of Munich)

  • Hans Zischka

    (Technical University of Munich)

Abstract

A substantial number of patents tested in court for validity are invalidated. If a similar portion of all patents was deemed invalid in hypothetical validity tests, then this would indicate a seriously flawed patent system due to restrictions unduly imposed by these erroneously granted patents on users and follow-on innovators. Thus, we ask, if a randomly picked patent underwent revocation proceedings, what are the odds of its invalidation? We address this question by analyzing the various selection effects through which patents become subject to validity decisions. Empirically, we focus on Germany, where revocation proceedings are separate from infringement suits and where, in court decisions during the period of 2010–2012, 45% of patents were determined to be fully invalid and 33% to be partially invalid. Based on data gleaned through expert interviews, a survey among lawyers, and an econometric analysis of court judgments, we find the likelihood of (hypothetical) invalidation of a randomly picked patent to be in the same range as that for actually adjudicated patents. As the main cause of patent invalidity we identify incomplete searches for prior art during examination. Our arguments carry over to other legislations. To remedy this situation, we suggest a significant increase of the inventive step required for patent grant combined with a smaller increase of the inventive-step standard in litigation.

Suggested Citation

  • Joachim Henkel & Hans Zischka, 2019. "How many patents are truly valid? Extent, causes, and remedies for latent patent invalidity," European Journal of Law and Economics, Springer, vol. 48(2), pages 195-239, October.
  • Handle: RePEc:kap:ejlwec:v:48:y:2019:i:2:d:10.1007_s10657-019-09627-4
    DOI: 10.1007/s10657-019-09627-4
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    References listed on IDEAS

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    Full references (including those not matched with items on IDEAS)

    Citations

    Blog mentions

    As found by EconAcademics.org, the blog aggregator for Economics research:
    1. Call to readers: let's talk about patent quality
      by noreply@blogger.com (Léon Dijkman) in The IPKat on 2019-11-08 11:35:00
    2. How to deal with abusive patent enforcement within the EU enforcement framework
      by Neil Wilkof in The IPKat on 2020-06-30 08:47:00
    3. Does the injunction gap violate implementers' fair trial rights under the ECHR?
      by Léon Dijkman in The IPKat on 2020-12-16 09:28:00

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    Cited by:

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    2. Kwon, Seokbeom, 2021. "The prevalence of weak patents in the United States: A new method to identify weak patents and the implications for patent policy," Technology in Society, Elsevier, vol. 64(C).

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    More about this item

    Keywords

    Patent; Patent validity; Litigation; Inventive step; Innovation;
    All these keywords.

    JEL classification:

    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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