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Prospects for Improving U.S. Patent Quality via Postgrant Opposition

In: Innovation Policy and the Economy, Volume 4

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  • Bronwyn H. Hall
  • Stuart Graham
  • Dietmar Harhoff
  • David C. Mowery

Abstract

The recent surge in U.S. patenting and expansion of patentable subject matter has increased patent office backlogs and raised concerns that in some cases patents of insufficient quality or with inadequate search of prior art are being issued. At the same time patent litigation and its costs are rising. This paper explores the potential of a post-grant review process modeled on the European opposition system to improve patent quality, reveal overlooked prior art, and reduce subsequent litigation. We argue that the welfare gains to such a system may be substantial.
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Suggested Citation

  • 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.
    • Handle: RePEc:nbr:nberch:10801
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    1. Kortum, Samuel & Lerner, Josh, 1998. "Stronger protection or technological revolution: what is behind the recent surge in patenting?," Carnegie-Rochester Conference Series on Public Policy, Elsevier, vol. 48(1), pages 247-304, June.
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    3. Hall, Bronwyn H., 2003. "Business Method Patents, Innovation, and Policy," Department of Economics, Working Paper Series qt2n24f63d, Department of Economics, Institute for Business and Economic Research, UC Berkeley.
    4. Jonathan Levin & Richard Levin, "undated". "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.
    5. Robert M. Hunt, 2001. "You can patent that? Are patents on computer programs and business methods good for the new economy?," Business Review, Federal Reserve Bank of Philadelphia, issue Q1, pages 5-15.
    6. 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.
    7. Lanjouw, Jean O & Schankerman, Mark, 2001. "Enforcing Intellectual Property Rights," CEPR Discussion Papers 3093, C.E.P.R. Discussion Papers.
    8. Kingston, William, 2001. "Innovation needs patents reform," Research Policy, Elsevier, vol. 30(3), pages 403-423, March.
    9. Kortum, Samuel & Lerner, Josh, 1999. "What is behind the recent surge in patenting?1," Research Policy, Elsevier, vol. 28(1), pages 1-22, January.
    10. 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.
    11. Lerner, Josh, 1995. "Patenting in the Shadow of Competitors," Journal of Law and Economics, University of Chicago Press, vol. 38(2), pages 463-495, October.
    12. Cremers, Katrin, 2004. "Determinants of Patent Litigation in Germany," ZEW Discussion Papers 04-72, ZEW - Leibniz Centre for European Economic Research.
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    Cited by:

    1. van Zeebroeck, Nicolas & van Pottelsberghe de la Potterie, Bruno & Guellec, Dominique, 2009. "Claiming more: the Increased Voluminosity of Patent Applications and its Determinants," Research Policy, Elsevier, vol. 38(6), pages 1006-1020, July.
    2. Henry, Emeric & Loseto, Marco & Ottaviani, Marco, 2018. "Regulation with Experimentation: Ex Ante Approval, Ex Post Withdrawal, and Liability," CEPR Discussion Papers 13224, C.E.P.R. Discussion Papers.
    3. Bruno van Pottelsberghe de la Potterie & Didier François, 2009. "The Cost Factor in Patent Systems," Journal of Industry, Competition and Trade, Springer, vol. 9(4), pages 329-355, December.
    4. 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.
    5. 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.
    6. Lenzi, Camilla, 2016. "Co-invention networks and inventive productivity in US citiesAuthor-Name: Breschi, Stefano," Journal of Urban Economics, Elsevier, vol. 92(C), pages 66-75.
    7. Nicolas van Zeebroeck, 2011. "The puzzle of patent value indicators," Economics of Innovation and New Technology, Taylor & Francis Journals, vol. 20(1), pages 33-62.
    8. Rockett, Katharine, 2010. "Property Rights and Invention," Handbook of the Economics of Innovation, Elsevier.
    9. Bronwyn H. Hall, 2009. "Business And Financial Method Patents, Innovation, And Policy," Scottish Journal of Political Economy, Scottish Economic Society, vol. 56(s1), pages 443-473, September.
    10. Bronwyn H. Hall, 2003. "Business Method Patents, Innovation, and Policy," NBER Working Papers 9717, National Bureau of Economic Research, Inc.
    11. Stefan Wagner, 2008. "Business Method Patents In Europe And Their Strategic Use—Evidence From Franking Device Manufacturers," Economics of Innovation and New Technology, Taylor & Francis Journals, vol. 17(3), pages 173-194.
    12. 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.
    13. Robert M. Hunt, 2010. "Business Method Patents And U.S. Financial Services," Contemporary Economic Policy, Western Economic Association International, vol. 28(3), pages 322-352, July.
    14. Yutaka Niidome, 2015. "The Factors Related to the Minimum and Maximum Survival of Patents against Challenges to Validity," GRIPS Discussion Papers 14-23, National Graduate Institute for Policy Studies.
    15. Hall, Bronwyn H. & MacGarvie, Megan, 2010. "The private value of software patents," Research Policy, Elsevier, vol. 39(7), pages 994-1009, September.
    16. Cristiano Antonelli, 2007. "Technological knowledge as an essential facility," Journal of Evolutionary Economics, Springer, vol. 17(4), pages 451-471, August.
    17. Graham, Stuart J.H. & Harhoff, Dietmar, 2006. "Can Post-Grant Reviews Improve Patent System Design? A Twin Study of US and European Patents," CEPR Discussion Papers 5680, C.E.P.R. Discussion Papers.
    18. Alessandro Sterlacchini, 2016. "Patent oppositions and opposition outcomes: evidence from domestic appliance companies," European Journal of Law and Economics, Springer, vol. 41(1), pages 183-203, February.
    19. repec:eee:irlaec:v:50:y:2017:i:c:p:25-35 is not listed on IDEAS
    20. Schneider, Cédric, 2008. "Fences and competition in patent races," International Journal of Industrial Organization, Elsevier, vol. 26(6), pages 1348-1364, November.
    21. Nicolas van Zeebroeck, 2007. "Patents only live twice: a patent survival analysis in Europe," Working Papers CEB 07-028.RS, ULB -- Universite Libre de Bruxelles.
    22. Buzzacchi, Luigi & Scellato, Giuseppe, 2008. "Patent litigation insurance and R&D incentives," International Review of Law and Economics, Elsevier, vol. 28(4), pages 272-286, December.
    23. Dietl, M & Skrok, & Benalcazar, P & Gątkowski, M & Rockett, K, 2017. "Pendency and Thickets," Economics Discussion Papers 19979, University of Essex, Department of Economics.
    24. Linda R. Cohen & Jun Ishii, 2005. "Competition, Innovation and Racing for Priority at the U.S. Patent and Trademark Office," Working Papers 050604, University of California-Irvine, Department of Economics.

    More about this item

    JEL classification:

    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • L00 - Industrial Organization - - General - - - General

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