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When Do Applicants Search for Prior Art?

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  • Bhaven N. Sampat

Abstract

There is concern that patent examiners lack the resources, capabilities, and incentives to properly identify the prior art against which patent applications are evaluated and that, as a result, they issue a large number of low-quality patents. In this context, the extent to which applicants have incentives to contribute prior art is an important question. This paper uses data on examiner and applicant citations in U.S. patents to examine this question. The data show that applicants contribute a surprisingly low share of citations to previous patents and routinely fail to identify even their own previous patents. However, there are also stark differences across fields. Within fields, and even within firms, there is self-sorting: applicants contribute more prior art for their more important inventions. The results suggest that incentives to search for prior art vary across industries and inventions, which reflects underlying differences in the strategic reasons for obtaining patent protection. (c) 2010 by The University of Chicago. All rights reserved.

Suggested Citation

  • Bhaven N. Sampat, 2010. "When Do Applicants Search for Prior Art?," Journal of Law and Economics, University of Chicago Press, vol. 53(2), pages 399-416, May.
  • Handle: RePEc:ucp:jlawec:v:53:y:2010:i:2:p:399-416
    DOI: 10.1086/651959
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    References listed on IDEAS

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    Citations

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    Cited by:

    1. Lei, Zhen & Wright, Brian D., 2017. "Why weak patents? Testing the examiner ignorance hypothesis," Journal of Public Economics, Elsevier, vol. 148(C), pages 43-56.
    2. Pierre Azoulay & Joshua S. Graff Zivin & Bhaven N. Sampat, 2011. "The Diffusion of Scientific Knowledge across Time and Space: Evidence from Professional Transitions for the Superstars of Medicine," NBER Chapters, in: The Rate and Direction of Inventive Activity Revisited, pages 107-155, National Bureau of Economic Research, Inc.
    3. Natarajan Balasubramanian & Jeongsik Lee & Jagadeesh Sivadasan, 2018. "Deadlines, Workflows, Task Sorting, and Work Quality," Management Science, INFORMS, vol. 64(4), pages 1804-1824, April.
    4. David Hirshleifer & Po-Hsuan Hsu & Dongmei Li, 2018. "Innovative Originality, Profitability, and Stock Returns," Review of Financial Studies, Society for Financial Studies, vol. 31(7), pages 2553-2605.
    5. Cotropia, Christopher A. & Lemley, Mark A. & Sampat, Bhaven, 2013. "Do applicant patent citations matter?," Research Policy, Elsevier, vol. 42(4), pages 844-854.
    6. NAGAOKA Sadao & YAMAUCHI Isamu, 2017. "Information Constraint of the Patent Office and Examination Quality: Evidence from the effects of initiation lags," Discussion papers 17040, Research Institute of Economy, Trade and Industry (RIETI).
    7. Huang, Ying & Chen, Lixin & Zhang, Lin, 2020. "Patent citation inflation: The phenomenon, its measurement, and relative indicators to temper its effects," Journal of Informetrics, Elsevier, vol. 14(2).
    8. Pierre Azoulay & Joshua S Graff Zivin & Danielle Li & Bhaven N Sampat, 2019. "Public R&D Investments and Private-sector Patenting: Evidence from NIH Funding Rules," Review of Economic Studies, Oxford University Press, vol. 86(1), pages 117-152.
    9. Corinne Langinier & Philippe Marcoul, 2016. "The Search of Prior Art and the Revelation of Information by Patent Applicants," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 49(3), pages 399-427, November.
    10. Andrew Eckert & Corinne Langinier, 2014. "A Survey Of The Economics Of Patent Systems And Procedures," Journal of Economic Surveys, Wiley Blackwell, vol. 28(5), pages 996-1015, December.
    11. Adam B. Jaffe & Gaétan de Rassenfosse, 2017. "Patent citation data in social science research: Overview and best practices," Journal of the Association for Information Science & Technology, Association for Information Science & Technology, vol. 68(6), pages 1360-1374, June.
    12. H. Kevin Steensma & Mukund Chari & Ralph Heidl, 2015. "The quest for expansive intellectual property rights and the failure to disclose known relevant prior art," Strategic Management Journal, Wiley Blackwell, vol. 36(8), pages 1186-1204, August.
    13. Chen, Lixin, 2017. "Do patent citations indicate knowledge linkage? The evidence from text similarities between patents and their citations," Journal of Informetrics, Elsevier, vol. 11(1), pages 63-79.
    14. Yamauchi, Isamu & Nagaoka, Sadao, 2013. "Does the outsourcing of prior art search increase the efficiency of patent examination?," IIR Working Paper 13-12, Institute of Innovation Research, Hitotsubashi University.
    15. Byungchul Choi & M. V. Shyam Kumar & Fabio Zambuto, 2016. "Capital Structure and Innovation Trajectory: The Role of Debt in Balancing Exploration and Exploitation," Organization Science, INFORMS, vol. 27(5), pages 1183-1201, October.
    16. 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.
    17. Yamauchi, Isamu & Nagaoka, Sadao, 2015. "Does the outsourcing of prior art search increase the efficiency of patent examination? Evidence from Japan," Research Policy, Elsevier, vol. 44(8), pages 1601-1614.
    18. Daniel P. Gross, 2019. "The Consequences of Invention Secrecy: Evidence from the USPTO Patent Secrecy Program in World War II," NBER Working Papers 25545, National Bureau of Economic Research, Inc.
    19. 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.
    20. Kathryn Rudie Harrigan & Maria Chiara Guardo & Elona Marku, 2018. "Patent value and the Tobin’s q ratio in media services," The Journal of Technology Transfer, Springer, vol. 43(1), pages 1-19, February.
    21. Marco Corsino & Paola Giuri & Salvatore Torrisi, 2019. "Technology spin-offs: teamwork, autonomy, and the exploitation of business opportunities," The Journal of Technology Transfer, Springer, vol. 44(5), pages 1603-1637, October.

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