Crafting Intellectual Property Rights: Implications for Patent Assertion Entities, Litigation and Innovation | SCHOLAR.HARVARD.EDU
The December Paper: “In this paper, we use variation in the process of writing the patent description and claims at the United States Patent Office (USPTO) to establish that much of the heterogeneity in patent outcomes is independent of scientific determinants and results from the way patent rights are crafted. We then show that this finding is key to understand the activities of Patent Assertion Entities (PAEs), a central and much-debated feature of the U.S. innovation system. PAEs, which acquire patents from third parties and generate revenue by asserting them against alleged infringers, have become controversial as they account for a large share of patent licensing and lawsuits.2 We find that they disproportionately purchase and assert patents from “lenient” patent examiners, who craft patents that are more likely to be litigated and to be invalid.
Why the roots of patent trolling may be in the patent office | ARSTECHNICA
Examiners culpable? “Feng and Jaravel found that examiners who demand the fewest changes to patent claims account for a disproportionate share of patents that ultimately wind up in patent lawsuits…And these effects are large: the pair found that patents reviewed by examiners who are one standard deviation more ‘lenient’ than average are 63 percent more likely to be purchased by a patent enforcement entity and 64 percent more likely to be involved in litigation…The study reinforces earlier research suggesting that the country’s problems with low-quality patents and rampant patent litigation is driven by inadequate scrutiny of patents by patent examiners. It suggests that giving patent examiners better training and more time to scrutinize each patent could improve patent quality and bring down frivolous patent litigation over time.”
‘Who Feeds the Trolls? Patent Trolls and the Patent Examination Process’ Presentation at the Hoover IP2 Conference 2017
“Evidence supports view that, on average, NPEs are nuisance litigators
Why might vague patents on incremental inventions be useful to nuisance litigators?
– Obviousness: higher likelihood others take this step when developing products
– Vague claims language: many possible interpretations which can be used flexibly to read on subsequent technology
Additional implication: examiners play an important role as co-producer of intellectual property
– Affect subsequent usage/outcomes”
ALSO SEE: The Founders’ Decision to Foster NPEs and Patent Licensing | IPWATCHDOG
From David Kline’s book: “Why facilitate the buying and selling of patents? Because doing so enabled ordinary worker or farmer inventors without the capital to commercialize their own discoveries to still participate in inventive activity and earn income by licensing or selling their patents to enterprises that could. This ability to license patent rights (along with the low application fees) turned inventing into a new career path for thousands of poor but technically creative citizens. It also proved to be a powerful means of mobilizing capital for investment in new technologies and their commercialization into new products and services for society.”