Low-quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners
A low-quality patent system threatens to slow the pace of technological progress. Concerns about low patent quality are supported by estimates from litigation studies suggesting that the majority of patents granted by the U.S. patent office should not have been issued. This paper proposes a new Bayesian method for measuring patent quality, based on twin patent applications granted at one office but refused at another office. Our method allows us to distinguish whether low-quality patents are issued because an office implements a (consistently) low standard, or because it violates its own standard. The results suggest that quality in patent systems is higher than previously thought. In particular, relative to the own standard of each office, the percentage of mistakenly granted patents is under 10 percent for all offices. The Japanese patent office has a greater percentage of mistakenly granted patents than those of Europe, the United States, Korea and China, largely because it has a higher standard.
The authors are grateful to seminar and conference participants at the New Zealand Economic Association Conference, Asia Pacific Innovation Conference, European Intellectual Property Policy Conference, Toulouse School of Economics, ETH Zurich, and the third International Meeting in Law & Economics (Paris) for valuable feedback. Joachim Henkel and Sonia Jaffe provided valuable comments. T’Mir Julius provided excellent research assistance and her contribution is gratefully acknowledged. This study was financed by the Australian Research Council Discovery Grant ARC LP110100266 “The Efficiency of the Global Patent System” with partners IP Australia and the Institute of Patent and Trademark Attorneys. The views expressed herein are those of the authors and do not necessarily reflect the views of the National Bureau of Economic Research.
Gaétan de Rassenfosse & William E. Griffiths & Adam B. Jaffe & Elizabeth Webster, 2021. "Low-Quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners," The Journal of Law, Economics, and Organization, vol 37(3), pages 607-636. citation courtesy of