Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid Patents?: Evidence from Micro-Level Application Data

Michael D. Frakes, Melissa F. Wasserman

NBER Working Paper No. 20337
Issued in July 2014
NBER Program(s):   LE   PR

This paper explores how examiner behavior is altered by the time allocated for reviewing a patent application. Insufficient examination time may crowd out examiner search effort, impeding the ability to form time-intensive prior-art-based rejections (especially, obviousness rejections) and thus leaving examiners more inclined to grant otherwise invalid applications. To test this prediction, we trace the behavior of individual examiners over the course of a series of certain promotions that carry with them a substantial reduction in expected examination time. For these purposes, we use novel micro-level application data spanning a ten year period and estimate examiner fixed-effects specifications that allow us to control flexibly for examiner heterogeneity. We find evidence demonstrating that search efforts and time-intensive rejections indeed fall, while granting tendencies rise, upon the promotions of interest. Assuming that patent examiners will tend to make the correct patentability determinations when provided sufficient examination time, our results suggest that the present schedule of time allotments may be inducing patent examiners to grant patents that otherwise fail to meet the patentability requirements.

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Document Object Identifier (DOI): 10.3386/w20337

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