Patent Office Cohorts

Concerns regarding low-quality patents and inconsistent decisions prompted Congress to enact the first major patent reform act in over sixty years and likewise spurred the Supreme Court to take a renewed interest in substantive patent law. Because little compelling empirical evidence exists as to what features affect the patent office’s granting behavior, policymakers have been trying to fix the patent system without understanding the root causes of its dysfunction. This Article aims to fill at least part of this gap by examining one factor that may affect patent examiners’ grant rates throughout their tenures: the year in which they were hired by the U.S. Patent and Trademark Office (PTO). An examiner may develop a general examination “style” in the critical early stages of her career that persists even in the face of changes in application quality or patent allowance culture at the agency. To the extent initial hiring environments influence a newly hired examiner’s practice style, variations in such initial conditions suggest examiners of different hiring cohorts may follow distinct, enduring pathways with their examination practices. Consistent with this prediction, we find strong evidence that the year an examiner was hired has a lasting effect on her granting patterns over the course of her career. Moreover, we find that the variation in the granting patterns of different PTO cohorts aligns with observed fluctuations in the initial conditions faced by such cohorts. By documenting the existence of cohort effects and by demonstrating the importance of initial environments in explaining certain long-term outcomes, this analysis holds various implications for patent policy and the administrative state more generally

The Patent Spiral

Examination — the process of reviewing a patent application and deciding whether to grant the requested patent — improves patent quality in two ways. It acts as a substantive screen, filtering out meritless applications and improving meritorious ones. It also acts as a costly screen, discouraging applicants from seeking low-value patents. Yet despite these dual roles, the patent system has a substantial quality problem: it is both too easy to get a patent (because examiners grant invalid patents that should be filtered out by a substantive screen) and too cheap to do so (because examiners grant low-value nuisance patents that should be filtered out by a costly screen). This Article argues that these flaws in patent screening are both worse and better than has been recognized. The flaws are worse because they are not static, but dynamic, interacting to reinforce each other. This interaction leads to a vicious cycle of more and more patents that should never have been granted. When patents are too easily obtained, that undermines the costly screen, because even a plainly invalid patent has a nuisance value greater than its cost. And when patents are too cheaply obtained, that undermines the substantive screen, because there will be more patent applications, and the examination system cannot scale indefinitely without sacrificing accuracy. The result is a cycle of more and more applications, being screened less and less accurately, to give more and more low-quality patents. And although it is hard to test directly if the quality of patent examination is falling, there is evidence suggesting that this cycle is affecting the patent system. At the same time, these flaws are not as bad as they seem because this cycle may be surprisingly easy to solve. The cycle gives policymakers substantial flexibility in designing patent reforms, because the effect of a reform on one piece of the cycle will propagate to the rest of the cycle. Reformers can concentrate on the easiest places to make reforms (like the litigation system) instead of trying to do the impossible (like eliminating examination errors). Such reforms would not only have local effects, but could help make the entire patent system work better

Working Paper, Rents and Inefficiency in the Patent and Copyright System: Is There a Better Route?

This paper analyzes the evidence for rents due to the patent and copyright systems for financing innovation and creative work. It notes research suggesting that in both the patent and copyright system, the costs in the form of monopoly pricing and rent-seeking activity outweigh the benefits. It then proposes alternatives to the patent and copyright system.The Kauffman Foundation helped support this work

The Center for the Public Domain: A Short-Lived Venture Philanthropy

Case study examines a foundation that was conceived as a "venture philanthropy" that would spend down its assets over a relatively brief time in support of its mission to redefine the open source technology movement as a philosophy and apply it to sectors outside of technology

Prospect patents, data markets, and the commons in data-driven medicine : openness and the political economy of intellectual property rights

Scholars who point to political influences and the regulatory function of patent courts in the USA have long questioned the courts’ subjective interpretation of what ‘things’ can be claimed as inventions. The present article sheds light on a different but related facet: the role of the courts in regulating knowledge production. I argue that the recent cases decided by the US Supreme Court and the Federal Circuit, which made diagnostics and software very difficult to patent and which attracted criticism for a wealth of different reasons, are fine case studies of the current debate over the proper role of the state in regulating the marketplace and knowledge production in the emerging information economy. The article explains that these patents are prospect patents that may be used by a monopolist to collect data that everybody else needs in order to compete effectively. As such, they raise familiar concerns about failure of coordination emerging as a result of a monopolist controlling a resource such as datasets that others need and cannot replicate. In effect, the courts regulated the market, primarily focusing on ensuring the free flow of data in the emerging marketplace very much in the spirit of the ‘free the data’ language in various policy initiatives, yet at the same time with an eye to boost downstream innovation. In doing so, these decisions essentially endorse practices of personal information processing which constitute a new type of public domain: a source of raw materials which are there for the taking and which have become most important inputs to commercial activity. From this vantage point of view, the legal interpretation of the private and the shared legitimizes a model of data extraction from individuals, the raw material of information capitalism, that will fuel the next generation of data-intensive therapeutics in the field of data-driven medicine

Ten years after: What are the effects of business method patents in financial services?

In recent years, the courts have determined that business methods can be patented, and the United States Patent and Trademark Office has granted some 12,000 patents of this sort. Has the availability of patents for business methods increased the rate of innovation in the U.S. financial sector? The available evidence suggests that there has been no significant change in the aggregate trend of R&D investments made by financial firms. In "Ten Years After: What Are the Effects of Business Method Patents in Financial Services?," Bob Hunt discusses how recent court decisions and proposed federal legislation may change how firms enforce their patents. In addition, he outlines some of the remaining challenges that business method patents pose for financial companies.Patents

Harnessing and Sharing the Benefits of State Sponsored Research

In recent years data-sharing has been a recurring focus of struggle within the scientific research community as improvements in information technology and digital networks have expanded the ways that data can be produced, disseminated, and used. Information technology makes it easier to share data in publicly accessible archives that aggregate data from multiple sources. Such sharing and aggregation facilitate observations that would otherwise be impossible. But data disclosure poses a dilemma for scientists. Data have long been the stock in trade of working scientists, lending credibility to their claims while highlighting new questions that are worthy of future research funding. Some disclosure is necessary in order to claim these benefits, but data disclosure may also benefit one\u27s research competitors. Scientists who share their data promptly and freely may find themselves at a competitive disadvantage relative to free riders in the race to make future observations and thereby to earn further recognition and funding. The possibility of commercial gain further raises the competitive stakes. This article discusses data sharing in California\u27s stem cell initiative against the background of other data sharing efforts and in light of the competing interests that the California Institute for Regenerative Medicine (CIRM) is directed to balance. We begin by considering how IP law affects data-sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who may have access to the data and on what conditions; (3) what data get deposited and when do they get deposited; and (4) how to establish database architecture and curate and maintain the database